Commission for Children and Young People v "S"

SOLICITOR LEGAL REPRESENTATIVES: Mr I V Knight, Crown Solicitor (Mr T Chisholm)

AMICUS CURIAE (without objection and by leave) Mr I Latham of counsel

CORAM: WRIGHT J, PRESIDENT PETERSON J McLEAY C

COMMISSION FOR CHILDREN AND YOUNG PEOPLE and "MR S"

Application by Commission for Children and Young People to extend time to appeal, leave to appeal and appeal against a decision of Commissioner Macdonald given on 24 December 2002 in Matter No IRC4005 of 2002.

1 I have had the benefit of considering in draft form the reasons of Peterson J and McLeay C. That draft helpfully sets out the decision made extempore by the Full Bench on 5 March 2003, the relevant facts, the pertinent parts of the decision of Macdonald C, the issues that arise in the appeal and in the proceedings generally and how those issues should be dealt with. I agree, in general terms, with the reasons of Peterson J and McLeay C. I wish, however, to add further observations as to some aspects of the matter.

2 An examination of the decision under appeal makes reasonably plain that in reaching the conclusion that the phrase "serious sexual offence" in the Child Protection (Prohibited Employment) Act 1998 was limited to offences involving children, Macdonald C had regard to certain materials which were part of the background to, and led (at least in part) to the enactment of that statute. As the reasons of Peterson J and McLeay C show, the material the Commissioner relied on included a recommendation of the Honourable Justice Wood presiding in the Royal Commission concerning the Police Force. The Commissioner also referred to the Minister's Second Reading Speech as to the subsequent proposed legislation in 2000, the Child Protection (Offenders Registration) Bill. Indeed it seems that Macdonald C had greater regard to these documents than he had to the actual terms of the particular legislation. The approach taken demonstrates the difficulties in approaching an issue of statutory construction in this way. It is also plainly contrary to high authority: see, for example, Re Bolton; Ex parte Beane (1987) 162 CLR 514, 518, R v Young (1999) 46 NSWLR 681, 690.

3 In R v Clarkson; Ex parte The Victorian Employers Federation (1973) 131 CLR 100, 111 Menzies J observed that "[i]n the field of industrial relations, every consideration is in favour of simplicity as opposed to complexity". Although this observation was made in a context quite different to the present and for a quite different purpose, his Honour's words seem to be reasonably apt to describe many of the issues which arise under the Child Protection Act. By its nature and scope the legislation requires application in many employment contexts including in enterprises conducted by quite small employers who would not have ready, or in many cases any, access to legal or expert employment advice. The legislation will also often require consideration by individual employees whose practical access to such expertise will be limited or non-existent. There is every reason in such circumstances to expect that the Parliament should be taken to have meant what it said in very plain terms and that Parliament did not intend that the meaning of its legislation could only be gleaned by delving into travaux preparatoires or the like. The wide-ranging scope of the legislation and its subject matter tend also to confirm that this is the correct approach.

4 Although I accept the observation of Peterson J and McLeay C that the Full Bench in Commission for Children and Young People v "A" [2003] NSWIRComm 6 was dealing with issues of construction materially different to the present issue, that decision in my view is entirely consistent with the approach taken by the Full Bench in the present matter and a proper appreciation of it (see, for example paragraphs [51] and [56] thereof) makes plain that it also stressed the importance of giving due weight to the plain and particular words of the relevant statute. REASONS FOR DECISION OF PETERSON J AND McLEAY C

5 These proceedings were initiated by an application by the Commission for Children and Young People to extend time to appeal from a decision of Commissioner Macdonald given on 24 December 2002 in the matter of an application by a person, referred to in the proceedings as "Mr S", for an order under s9 of the Child Protection (Prohibited Employment) Act 1998 ('the Child Protection Act').

6 Also filed with the application to extend time to appeal was an application for leave to appeal and appeal from the said decision. In the proceedings before the Commissioner, Mr "S" had represented himself and, whilst failing to achieve his desired exemption from the operation of the Child Protection Act, in circumstances to which we shall come, the result of the primary proceedings was a ruling that the Child Protection Act did not apply to his situation. That ruling having provoked these proceedings, Mr "S" did not appear. However, Mr Singleton of counsel appeared for the appellant and Mr Latham of counsel sought and obtained leave to appear as amicus curiae.

7 On 5 March 2003 the application to extend time and that for leave to appeal and the appeal were listed together. In the absence of objection and, having regard to the affidavit of Tom Chisholm, a solicitor in the Crown Solicitor's Office with carriage of the matter, which essentially adverted to the difficulty in the Commission for Children and Young People obtaining legal advice over the Christmas/New Year period and the development of the circumstances in which the matter was commenced, the Full Bench granted the application for an extension of time.

8 The Full Bench also granted leave to appeal, paying regard to the significance of the issues raised, both in terms of general importance and specifically with respect to the parties to these proceedings. Those matters will be illustrated in our discussion of the merits of the appeal.

9 Upon the conclusion of the hearing the Full Bench indicated its reasons for decision would be published as soon as practicable and made the following orders: 1. That the Child Protection (Prohibited Employment) Act 1998 is not to apply to the person referred to pseudonymously as "Mr S" in these proceedings, in respect of the offence of assault with an act of indecency, for which he was convicted by the Local Court at Junee on 25 September 2001, which conviction was confirmed on appeal by the District Court at Wagga on 22 March 2002.

2. This order shall operate on and from 24 December 2002.

3. The Registrar is directed to advise the Commissioner of Police in writing of the terms of these orders and also to include in that document the name of the person the subject of the orders.

10 The Child Protection Act (ss. 6, 7 and 8) creates a number of offences relating to the employment, or the continued employment, in "child-related employment" as defined in s3, of a person who has been convicted of what is described as a "serious sex offence", which is defined in s5(3) to include: (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, . . .

11 By s9 of the Child Protection Act, the Commission is empowered to make an order that the Act is not to apply to a particular individual in respect of an identified serious sex offence. The section requires the Commission, in making any order under it, to take into account particular factors. Those factors must be considered, not only in the context of a final order, but also any order made under s9(6), staying the operation of the Act pending the determination of an application (see the judgment of Wright J, President in "A" v Commission for Children and Young People (No 2) (2001) 104 IR 119 at paragraph [21]). This view was also adopted by Young CJ in Eq. in Commission for Children and Young People v V [2002] NSWSC 949, 23 October 2002, unreported, where his Honour said (at paragraph [46]): It is right to observe, as it has been observed in the Industrial Commission, that conditional orders apply to any order made under the section, including applications to stay. Indeed, sub-sections (4) and (5) also apply to stay applications.

12 It is plain from the factors identified in s9 that a principal concern of the statute, as is intimated by its title, is to protect children from the risk of predation by any person who, having contact with children through employment, may be a risk in seeking to take their advantage. This, too, was dealt with by Young CJ in Eq. in the same case. We shall return to discuss that matter.

13 Mr "S" is a septuagenarian who has been employed on a casual basis as a relief school bus driver. He has performed this work for many years without difficulty. On 25 November 2000 he was convicted of having indecently assaulted a 41 year old woman, contrary to s61L of the Crimes Act 1900. That section provides: Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for five years. The conviction was confirmed on appeal and Mr "S" was placed on a good behaviour bond.

14 The Child Protection Act makes no distinction, in the definition of "serious sex offence" between an offence committed against an adult and an offence involving a child. Accordingly, the conviction of Mr "S" had the effect, if the Child Protection Act is applicable to his circumstances, of preventing his continued employment as a casual relief school bus driver. His application, with which Macdonald C dealt, sought an order declaring that the Child Protection Act was not to apply to him in respect of the offence involved in the conviction.

15 The Commissioner's decision of 24 December 2002 identified the details of the incident giving rise to the charge and conviction, which we find it unnecessary to repeat. It is sufficient for present purposes to record that, at the time of the incident, the applicant was aged 75 years and the female involved was aged 41 years.

16 The position adopted by the Commission for Children and Young People in the primary proceedings was that it did not oppose the application for a declaration that the Act not apply to Mr S, although it submitted Mr "S" carried the onus of satisfying the requirements of s9(5) of the Child Protection Act, which satisfaction is necessary before an order may be made. However, the Commission for Children and Young People was required to deal with a question raised by the Commissioner, described to be a jurisdictional issue: how did the Child Protection Act apply in circumstances where the relevant sex offence occurred between two adults?

17 In answering that question, the Commission for Children and Young People submitted that the Child Protection Act, by its terms, manifested an intention to protect children from any risk to their safety from persons who have committed a serious sex offence without limiting such offences to those against children. As s61L of the Crimes Act 1900 does not distinguish between adult and child victims, then the Child Protection Act is to be read as making no such distinction. It was submitted that the legislative purpose was to safeguard children from those with whom they are brought into contact by virtue of the latter's employment, and is directed towards the protection of children in the most comprehensive way, against all risks (see X v Commissioner for Children and Young People [2001] NSWADT 130, 9 August 2002, unreported).

18 The Commissioner rejected these submissions. He referred to the legislative history of the Child Protection Act in its passage through the Parliament. He adverted to the Minister's second reading speech of the Child Protection (Offenders Registration) Bill, which began as follows: "This bill responds to recommendation 111 of the Wood royal commission paedophile enquiry . . .". (The Commissioner emphasised the last two words). He went on to cite the Minister's speech as follows: "In 1998 the Carr Government introduced three Acts that acknowledge the recidivist nature of paedophile offending . Those Acts impose certain restrictions on child sex offenders after their release from prison into the community . This bill is the latest brick in the wall that the Carr Government is building around our most vulnerable - children - protecting them from abuse and exploitation." (emphasis added) (Hansard: 52nd Parliament of NSW, page 6475).

19 The Commissioner's decision continued: This bill established a child sex registration scheme which requires child sex offenders to inform government agencies, usually police, of changes to certain personal details.

This bill is directed at child sex offenders and the registration scheme is to act as a deterrent to recidivist offenders.

The Respondent has not alleged that the Applicant was a child sex offender - let alone a recidivist offender.

The relevance of this statute to the Respondent's submission on jurisdiction is accordingly, not clear.

As to the intention of the legislature when deliberating the Child Protection (Prohibited Employment) Bill (No 3) , the Minister's second reading speech in the Legislative Assembly said that the bill "will implement recommendation 139 of the Wood royal commission" (Hansard, 21 October 1998, page 8739 at 8742).

Recommendation 139 reads as follows: "139. Consideration be given to the creation of the summary offence where a person convicted of child sexual abuse or the subject of a current unacceptable risk certificate seeks or obtains work, or offers or provides services, which in any such case involves that person having children in his care or under his supervision" (emphasis added).

20 The Commissioner concluded that the Child Protection Act did not apply in the circumstances of an adult committing an indecent assault against another adult and thus found it was not necessary to determine the application by Mr "S" to be declared exempt from the operation of the Child Protection Act.

21 It is obvious that the correctness of the Commissioner's decision is crucial to Mr S, and his employer, in the sense that, were the decision incorrect and left uncorrected, the result could be the exposure, of both parties to the employment arrangement, to prosecution for breach of the Child Protection Act. Those breaches would carry for the employee a maximum penalty of $100,000 or imprisonment for 12 months, or both (s6(1)), and for the employer a maximum penalty of $100,000 in the case of a corporation or $50,000 in any other case (s8(1)). That seems to us to have been an invidious position, particularly where the Commissioner expressed the view that he would otherwise have granted the applicant a declaration of exemption from the operation of the Child Protection Act. It was an important aspect of the reasons for our grant of leave to appeal.

22 The appellant's submissions on the merits of the appeal were directed to supporting essentially the following propositions:

· The scheme of the Act involves the casting of a very wide net. By direct operation of the statute a considerable number of persons are prohibited from child-related employment. The scheme then allows for individual persons to apply (pursuant to s9) to this Commission or the Administrative Decisions Tribunal for exemption or, by the subsequent enactment of s8A, to the Commission for Children and Young People.

· Only a prohibited person may make an application for an order under s9. It is therefore a jurisdictional prerequisite for proceedings under s9 that the applicant be a prohibited person. If the applicant is not a prohibited person the proceedings must be dismissed for want of jurisdiction. On the other hand, if the person is a prohibited person he or she has standing to apply, and is entitled to a ruling on the merits of his or her application.

· The Commissioner proceeded by reading-down the operation of the Act. In this the Commissioner erred.

· It is not unreasonable to perceive the purpose of the Child Protection Act as being anti-paedophile legislation. It would not have been unreasonable for the Commissioner to conclude that Parliament did not intend that adults who had offended against other adults (and who pose no risk to the safety of children) should be excluded from child-related employment. That the answer to this was not to hold that the Child Protection Act did not apply but to hold that certain applications under s9 should be granted.

· Alternatively to the foregoing, if upon a proper construction of the decision, it was held that Mr "S" was not a prohibited person, then the Commissioner erred. An offence against s61L of the Crimes Act falls within the definition of "serious sex offence". There is nothing in the definition that would exclude breaches of s61L where the offence was committed against an adult.

· If, according to the first and second arguments on appeal the Commissioner was in error, it follows that he failed to determine the primary application on the merits. It was noted that the Commissioner would have found that Mr "S" should be granted a declaration of exemption were the Child Protection Act applicable. The Commission for Children and Young People would not oppose the Full Bench proceeding under s9 to make an order in favour of Mr S.

23 Mr Latham supported the Commissioner's conclusions concerning the effect of ss61L and 61M of the Crimes Act 1900 to the effect that s61L was applicable to offences involving adults and the specific provision dealing with indecent sexual assaults upon children contained in s61M was to be distinguished. It was submitted this conclusion was correct although not integral to the decision.

24 Mr Latham also relied upon s33 of the Interpretation Act which provides that in the interpretation of a provision of a statute ". . . a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule . . .), shall be preferred to a construction that would not promote that purpose or object". He relied also on s34 of that Act which refers to the use of extrinsic material in the interpretation of an Act.

25 He referred to the judgment of the Full Bench of the Commission in Court Session in Commission for Children and Young People v "A" [2003] NSWIRComm 6, 29 January 2003, unreported, where at pars. 55, 70 and 71 reference was made to the purpose of the Child Protection Act as the protection of children. It was submitted that the observation of the Full Bench in paragraph [71] of that judgment was the most precise formulation and was correct. There, the Full Bench said (in part): 71 That construction of the Child Protection (Prohibited Employment) Act would appear, given the particular concerns to which the legislation is directed, to give effect to the obvious legislative intention. The legislature has seen fit to place the requisite onus upon persons who have been convicted of a serious sex offence, to demonstrate why they should no longer be considered a danger to children if they are, or seek to be, engaged in child-related work.

26 Mr Latham relied on the words "they should no longer be considered a danger to children". He submitted: A person convicted of an offence against an adult cannot demonstrate that they are no longer a danger to children because they were never thus (or at least no greater a danger than any other person). It is contrary to the purpose of the Act to place on onus upon an offender who is not alleged to have been involved in sexual offences against children. Such an onus clearly arises in a penal context and the restrictions upon the individual should be strictly construed.

27 Finally, in the alternative, Mr Latham submitted that should the Full Bench reject his argument, an order under s9 of the Child Protection Act should be made.

28 We note that Mr Singleton, while taking issue with Mr Latham's submissions generally, particularly disputed the proposition that any onus placed upon an offender, as applicant here, does not arise in a penal context because s9 is not a penal provision but a remedial one.

29 We consider the Commissioner erred in turning his mind to a construction of the two identified sections of the Crimes Act dealing with indecent assault. The question for determination was whether the Child Protection Act operated in respect of a conviction for indecent assault contrary to s61L of the Crimes Act. Whether or not it be correct that s61L of that Act ought be construed as excluding the offence of indecent sexual assault upon a child is, in our consideration, irrelevant to the question arising under the Child Protection Act.

30 The purpose of the legislature, as ascertained from the language employed in the statute and, having regard to the Minister's second reading speech referred to by the Commissioner, is unquestionably to protect children from the possibility of sexual abuse by persons employed in child-related employment. While such a risk may be at its highest from persons convicted of child sex offences, that purpose is achieved by defining a serious sexual offence in wide terms and then providing for consideration of any risk posed to children with a removal, by declaration, of the prohibition the statute otherwise imposes, where a relevant degree of risk is not found to exist. There is nothing in the legislation from which it may be detected that the prohibition was intended to operate more narrowly than the ordinary and grammatical meaning of the words employed in the definition of "serious sexual offence".

31 The second reading speech focussed upon a recognisable source of risk, namely paedophiles. It is obvious that a child sex offender is to be regarded as providing a risk sufficient to justify a bar on employment, subject to a right to have that risk reviewed. However, we do not consider the second reading speech to have attempted to, or to have been intended to, confine the legislative purpose of the Child Protection Act to known paedophiles. The second reading speech in relation to the bill for the Child Protection Act, supports this. While the Minister stated the bill would implement recommendation 139 of the Wood royal commission (see paragraph [15] hereof), immediately thereafter this was said: The object of the bill is to prohibit persons with convictions for serious sexual offences from working in positions of child-related employment. Its provisions form an integral part of the employment screening system, that are low cost and are easily undertaken by employers. Under the bill, all current and prospective employees will be asked to declare whether they have any convictions for a serious sex offence. If they do, they will be prohibited from applying for, or continuing to work in, positions involving direct unsupervised contact with children.

32 The observations of the Full Bench in Commission for Children and Young People v "A" are not to be taken as defining exhaustively the scope or purpose of the Child Protection Act. Those observations were made in the context of the case, which had a particular issue quite different to that now before us. The Child Protection Act operates upon a presumption that any person convicted of a serious sex offence as defined by that Act may pose a risk to the safety of children where they are employed, or seek to be employed in child-related employment. The concept of seeking to protect children from potential predators cannot be confined by reference to the age of the victim of a person who has been convicted of a serious sex offence. An obvious illustration is an offence in relation to a person barely out of childhood for the purposes of s61M of the Crimes Act.

33 In R v New South Wales Commission for Children and Young People [2002] NSWIRComm 101, 16 May 2002, unreported, Haylen J referred to the concept of risk arising in s9(4) of the Child Protection Act as being "not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve civil rights". (at paragraph [104]).

34 In Commission for Children and Young People v V (ibid) Young CJ in Eq. said of the meaning of "risk": 41 It follows that when approaching the construction of s 9 one must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence.

42 (2) It almost follows, from what I have just said, that one does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". The approach of the plaintiff is to say that children must be read as children generally, and if there is a risk to a section of children which is constituted by a large number of children, then there is a risk to children generally. So that, if in the present case it be said that Mr V is a risk to female teenage children, then he is a risk to children generally.

43 I very much wonder whether that is a proper construction of the Act. If it is to be read so as to preserve a balancing exercise, I would have thought a more balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. If a person is only going to be employed amongst boy children, then the fact that he might be a risk to girl children may be quite irrelevant.

35 While the risk to which s9(4) relates is the risk posed to children, there is no basis for considering that risk should be limited in scope to risk arising from persons who have been convicted of a serious sex offence involving a child. The risk is simply not confined to one arising from a particular quarter. Were the intention of Parliament to confine the operation of the Child Protection Act to offenders in relation to children, there would have been no difficulty in defining "serious sex offence" accordingly. This was not done.

36 In these circumstances, we consider correct the submissions made by the appellant to the effect that the Child Protection Act, upon its proper construction, was intended to cast a wide net but with the ready possibility that, upon an appropriate review, a person posing no present risk could receive the benefit of a declaration under s9.

37 In assessing the appropriateness of an order under s9 in the applicant's favour, we took into account the absence of any objection thereto by the Commission for Children and Young People, the observation by the Commissioner that were it not for his view on jurisdiction he would have made such an order and the matters referred to in s9(5) as necessary factors for consideration.

38 Included in the evidence before the Commissioner is the opinion of Dr Christopher J. Lennings of the Department of Behavioural Sciences in the Faculty of Health Science at the University of Sydney. This report, obtained at the behest of the Commission for Children and Young People, assesses Mr "S" as presenting a risk of offending in relation to adult women as not "that much greater than the general public" and that the risk of offence in relation to children as "low". He assessed the character of Mr "S" as appearing, on the face of it, to be "rather exemplary".

39 We were satisfied, in the circumstances, that the applicant does not pose a risk to the safety of children, within the meaning of s9(4) of the Child Protection Act.

40 It is for these reasons we granted leave to appeal, upheld the appeal and made the orders set out in paragraph [9] of this decision.

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