Commissioner for Children and Young People v "G" & Anor [2001] NSWSC 534 | Case summary

JUDGMENT 1 HIS HONOUR: This is a summons brought by the Commissioner for Children and Young People against a person called "G", the first defendant, and the Administrative Decisions Tribunal the second defendant. The summons seeks orders arising out of an order made by the second defendant under s 9 Child Protection (Prohibited Employment) Act 1998 granting with respect to the first defendant a stay of the application of the provisions of the Act and against an order of the second defendant refusing to revoke the stay. 2 Proceedings were brought by the first defendant to the second defendant under the Act. Under s 6 of the Act, it is an offence for a prohibited person to apply for, undertake or remain in child-related employment. The term "prohibited" is defined in s 5 of the Act and includes persons convicted of serious sex offences. The term "serious sex offence" is defined in the same section as including an offence involving sexual activity or an act of indecency attracting a maximum sentence of imprisonment for twelve months or longer. The term "child-related employment" is defined in s 3 in a wide manner including employment in clubs, associations or movements (including of a cultural, recreational or sporting nature) having a significant child membership or involvement. 3 It appears that the first defendant used to be a school teacher. In about 1985 he was convicted of committing sexual offences upon a number of children, at least two of whom were his charges as a school teacher. He was sentenced to serve a number of concurrent terms of imprisonment comprising, I think, an effective non-parole period of fourteen months. At least that is the term which, according to the order, the first defendant actually served. 4 It also appears that for a number of years the first defendant has been an athletics coach in a certain athletics club and that the persons he coaches include children. He appears, insofar as he has coached such children, to have contravened the provisions of s 6 of the Act. That explains why he applied to the second defendant for an order under s 9 of the Act. It provides that on the application of a prohibited person a relevant tribunal (which includes the second defendant) may make an order declaring that the Act should not apply to the person in respect of a specified offence. The first defendant's application has still not been dealt with by the second defendant and the matter comes before this Court following an application made by the first defendant to the second defendant under s 9(6) of the Act. That subsection provides as follows: On an application under this section a relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter. 5 One of the grounds upon which the plaintiff brings its summons claims that it was denied natural justice in its attempt to respond to the application for the stay. The thrust of the submissions is that matters proceeded so unreasonably quickly as to render it unable to respond to the application in any responsible manner. 6 It was apparent to this Court that the first defendant did not intend to put any submissions opposing the orders sought by the plaintiff or arguing against the assertions put forward by the plaintiff in the grounds of appeal. The Court therefore requested that counsel be made available put forward any arguments of law that might be available in opposition. In due course I granted Mr McClintock of counsel leave as amicus curiae to respond as seemed appropriate to the plaintiff's submissions of law. 7 When the matter was called on today, Mr McClintock said that he did not wish to make any submissions resisting the plaintiff's contention that it was denied natural justice before the second defendant. In my opinion that was an appropriate and responsible attitude to take. I shall explain why I think the second defendant denied the plaintiff natural justice but I have come to that view not because of any submission or concession made by Mr McClintock, but on the evidence that has been placed before the Court. 8 The Court has read the affidavits of Karen Nicole Sidler sworn 5 March 2001. It appears that the following happened. On 23 November 2000 the first defendant filed with the second defendant an application for a declaration under Pt 3 of the Act. The only section in Pt 3 is s 9. Subs (1) is the one which provides for the declaration that the Act is not to apply in respect of a specified offence. The application was in writing. It stated that the offence or offences which were relevant to the application were sexual assault, that they had happened in February/March 1985 and August/September 1985 and that the first defendant had been convicted in November 1986. The first defendant furnished copies of character references. 9 The Act provides that the plaintiff is to be a party to applications of the kind made by the first defendant. The plaintiff first received notice of the first defendant's application when it received by facsimile transmission on 27 November 2000 a copy of the application and some other relevant documents. In the meantime, on 24 November the first defendant had faxed to the second defendant an application for a stay. The plaintiff was first informed about the stay application on 27 November, apparently at the same time as it was informed about the primary application. 10 The second defendant directed on 27 November that the stay application be heard by telephone conference. The stay application bears the following endorsement - This will be conducted by way of phone conference. Please confirm in writing notice of the attendance and phone number that representative will be available on. 11 At about 2.40pm on 28 November the plaintiff first obtained a copy of the criminal history of the first defendant. A brief glance at that history suggests that the material disclosed by the first defendant in his primary application was incomplete. 12 At about 3pm on the same day the stay application was heard by telephone conference. A solicitor represented the plaintiff. Submissions were made. At about 9.40 on the following day, 29 November 2000, Miss Sidler was informed by telephone by a member of the staff of the registry of the second defendant that it had decided to grant a stay to the first defendant and that the plaintiff had until 2.30pm on that day to file written submissions as to what conditions ought to be imposed by the second defendant. The plaintiff complied and made submissions. 13 Between 18 and 20 December 2000 the plaintiff received further documentary material relating to the matter. On 18 December an application was made on behalf of the plaintiff that the second defendant revoke the stay order. On 22 December the application was heard by the second defendant. The application was refused. 14 The second defendant is bound to follow the rules of natural justice: s 73(2) Administrative Decisions Tribunal Act 1997. That would require a reasonable opportunity to be given to the plaintiff to respond to material put forward by the first defendant. Of fundamental importance in his application was the nature of the offences of which he had been convicted. Subs (5) of s 9 requires a tribunal hearing an application for an order under that section to take into account the seriousness of the offences with respect to which the appellant is a prohibited person. In my opinion no proper opportunity was given by the second defendant to the plaintiff to inform itself and the second defendant about such important matters touching the first defendant. 15 It is not to be supposed that it will never be appropriate for a matter like this to be dealt with in a telephone conference as this stay application was, but this was not a case which needed to be dealt with with such haste. The interests of justice required full particulars to be put before the second defendant. 16 As I have said, the first defendant had been carrying on coaching for some considerable time. There appears no reason why he could not have made an application much earlier. A very serious state of affairs may arise if an exemption is granted on inadequate information to a person who is handling young children and who is known to have committed sexual offences on young children. It was clear to the second defendant that the manner in which the first defendant would be dealing with children would be as a coach, that is, as a person having some authority over them. He was in a not dissimilar position of authority when he committed his offences. The circumstances required proper and deliberate investigation to be made of the matters of which the first defendant had been convicted. 17 As it turns out, the first defendant was less than forthcoming in what he was prepared to tell the second defendant. He said this in the telephone conference, having been asked how he had handled the children - Around the shoulder area and that is all it was too and when they were sitting on my knee around the lap area. At no point was there any question about me being under their clothes of any kind. 18 Enquiries made in due course on behalf of the plaintiff revealed that the sentencing judge said this in imposing sentence - (The assaults) took the form of in all but one case the touching of the vaginal area or, more importantly, the outer genitalia of the children. There is a dispute between the evidence of the prisoner and the evidence of the children as to whether that took place underneath the underclothing of the child or the outside. The Court is satisfied that it took place on the inside notwithstanding the denials of the prisoner. 19 The material obtained by the plaintiff also showed that the complainants named in the indictment were not the only ones who had complained that the first defendant had indecently assaulted them. These few facts demonstrate how serious the position became when no proper opportunity was afforded to the plaintiff to carry out its duty under the Act and inform and assist the second defendant. The plaintiff was thereby denied natural justice. 20 The plaintiff seeks a number of orders and raises a number of grounds of appeal in the statement filed on 5 February 2001 and amended by leave today. They include ground 5, namely that the second defendant erred at law by failing to afford natural justice. I find that that ground is made out. 21 The success of the plaintiff on that ground is sufficient to dispose of the proceedings before this Court, but the plaintiff wishes the Court to deal with other matters of law which it says arise from the published decisions of the second defendant. Those grounds raise for consideration the construction of certain subsections of s 9. Although it was submitted and may be accepted that such questions are or may be of public importance, it does not seem to me to be appropriate to assume that when the second defendant ultimately hears the first defendant's application its decision will be consonant with the decisions so far made or that its reasons will be the same. Accordingly I do not propose to answer those questions. 22 I make the following orders -

Commissioner for Children and Young People v "G" & Anor

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Judgment (10 paragraphs)

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