Commission for Children and Young People v "A" - [2003] NSWIRComm 6 - NSWIRComm 2003 case summary — Zoe

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Commission for Children and Young People v "A"

[2003] NSWIRComm 6

Industrial Relations Commission (NSW)|2003-07-01|Before: Wright J, Walton J, Kavanagh J, Mr P, Hungerford J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Wright J, Walton J, Kavanagh J, Mr P, Hungerford J

Catchwords

05/09/2002 DATE OF JUDGMENT: 01/29/2003

Source

Original judgment source is linked above.

Catchwords

05/09/2002 DATE OF JUDGMENT: 01/29/2003

Judgment (94 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Commission for Children and Young People v "A" [2003] NSWIRComm 6 APPELLANTS: Commission for Children and Young People PARTIES : NSW Department of Education and Training

[3]

RESPONDENT: "A" FILE NUMBER: IRC 6202 of 2001 CORAM: Wright J President; Walton J Vice-President; Kavanagh J CATCHWORDS : Prohibited employment - Appeal - "A" a prohibited person under s 5 of the Child Protection (Prohibited Employment) Act - Person convicted of a serious sex offence - Conviction for offence occurred more than 15 years ago - Application for declaration that "A" not a "prohibited person" by operation of s 579 of Crimes Act 1900 - Interaction between the two statutory provisions - Whether statutory provisions inconsistent - Prohibited Employment Act clear and express in its purpose - Context in which Prohibited Employment Act came into existence - Prohibited Employment Act paramount - Leave to appeal granted - Appeal allowed Child Protection (Offenders Registration) Act 2000 Child Protection (Prohibited Employment) Act 1998 s 3 s 4 s 5 s 6 s 9 s 12 Commission for Children and Young People Act 1998 Crimes Act 1900 s 66C s 579 LEGISLATION CITED : Criminal Records Act 1991 s 17 Industrial Relations Act 1996 s 152 s 154 s 187 s 188 Interpretation Act 1987 s 30 s 33 Local Government Act 1993 s 274 s 275 Ombudsman Amendment (Child Protection and Community Services) Act 1998 AG v Commission for Children and Young People [2001] NSWADT 163 Athlumney, Ex parte Wilson [1898] 2 QB 547 Bolton, Ex parte Beane (1987) 162 CLR 514 Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268 Byrnes v The Queen (1999) 199 CLR 1 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commissioner for Children and Young People v 'AG' [2002] NSWSC 582 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Corporate Affairs Commission v Yuill (1991) 172 CLR 319 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 CASES CITED : Kingston v Keprose (1987) 11 NSWLR 404 Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 LL v Commission for Children and Young People [2001] NSWADT 174 Mathieson v Burton (1971) 124 CLR 1 Maxwell v Murphy (1957) 96 CLR 261 Mills v Meeking (1990) 169 CLR 214 Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 R v Sales (1989) 42 A Crim R 297. Rose v Hvric (1963) 108 CLR 353 Royal Automobile Club of Australia, Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282 Shephard, Re Applications of [1983] 1 NSWLR 96 Totalizator Agency Board v TAB Agents' Association of New South Wales (1995) 36 NSWLR 594 HEARING DATES: 04/12/2002; 05/09/2002 DATE OF JUDGMENT: 01/29/2003

[27]

"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. "conviction" includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction. "employment" means (subject to the regulations): (a) performance of work under a contract of employment, or (b) performance of work as a self-employed person or as a subcontractor, or (c) performance of work as a volunteer for an organisation, or (d) undertaking practical training as part of an educational or vocational course, or (e) performance of work as a minister of religion or other member of a religious organisation.

[29]

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, or a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000. (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 sub sections (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 purpose 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. 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, or (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, (a1) the period of time since those offences were committed, (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, (d1) the prohibited person's present age, (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 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. 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

[57]

Submissions of the Respondent 35 The respondent submitted that Hungerford J was correct to interpret s 579 of the Crimes Act in light of the judgment of the Court of Criminal Appeal in R v Sales, as providing a right that accrued to the respondent with the passage of time. The appellants' interpretation of the Child Protection (Prohibited Employment) Act was said to be simplistic and erroneous as that Act does not merely operate in respect of a person convicted of a "serious sex offence". It can only apply to such a person who is in "child-related employment", defined as that which primarily involves direct unsupervised contact with children. Further, there are exceptions to the definition of "child-related employment", the effect of which is to remove some persons who may otherwise fall into the category of prohibited persons. The legislature has not sought to apply the Child Protection (Prohibited Employment) Act to all situations in which children are present in the workplace. 36 The respondent submits that the appellants incorrectly state the proper approach to statutory construction in claiming that the provisions of the Child Protection (Prohibited Employment) Act and s 579 of the Crimes Act are inconsistent because each provision produces a different result when applied independently of each other. The correct approach is not whether a different result is produced in operation, but whether the two may be read together without producing inconsistency. 37 It is further submitted that the appellants' claim that Parliament intended to give greater protection to children fails on two counts. First, Parliament could have expressly stated that it did not intend that s 579 apply to a conviction of the kind dealt with by the Child Protection (Prohibited Employment) Act. Second, the legislature has relied upon the criminal justice system to identify those persons to whom the Child Protection (Prohibited Employment) Act is applicable. The legislature has taken therefore, it is submitted, the system in its entirety, except as otherwise identified in the statute, and therefore to the extent that a person may claim a conviction no longer has currency, the only inference is that the legislature intended the Child Protection (Prohibited Employment) Act would not apply.

[77]

57 Both s 579 of the Crimes Act and the definition of a "prohibited person" in the Child Protection (Prohibited Employment) Act are clear on their face and have a clear legislative intent. Both seek to promote and achieve important social purposes. However, as was observed by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305: [I]f the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107, at p 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. 58 A "prohibited person" is identified in s 5 of the Child Protection (Prohibited Employment) Act by reference to either one of two factors. That is, the person is "a person convicted of a serious sex offence", it being immaterial whether the offence was committed "before or after the commencement of this subsection", or secondly the person is "a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000". (It may be observed that the Child Protection (Offenders Registration) Act 2000 was assented to on 27 June 2000 and, so far as the amendment to s 5 of the Child Protection (Prohibited Employment) Act is concerned, commenced operation on 15 September 2000, shortly after the Child Protection (Prohibited Employment) Act came into effect on 3 July 2000).

Commission for Children and Young People v "A"

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Judgment (94 paragraphs)

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Cases Cited (20)

Cited By (3)