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[2012] NSWSC 1385
Supreme Court of NSW
2012-11-07
Simpson J
Original judgment source is linked above.
Judgment 1These proceedings, brought on behalf of the Commission for Children and Young People ("the Commission") by way of appeal from a decision of the Administrative Decisions Tribunal of NSW ("the ADT") involve a consideration and the application of certain provisions of the Commission for Children and Young People Act 1998 ("the Act"), and in particular Pt 7 thereof. 2The Act takes as its long title: "An Act to establish the Commission for Children and Young People and provide for its functions; to provide for safeguards and impose prohibitions relating to child-related employment; to amend certain Acts; and for other purposes." It is the second of these purposes, and the provisions of the Act designed to achieve it, that is the focus of the appeal. 3A number of specific provisions of the Act need to be understood for a proper appreciation of this judgment. It is convenient to set them out in the order in which they appear in the Act: "Part 1 Preliminary ... 3Definitions (1)In this Act: ... children means persons under the age of 18 years. Commission means the Commission for Children and Young People constituted by this Act. ... Part 7 Child-related employment Division 1 Preliminary 31Object of Part The object of this Part is to protect children: (a)by prohibiting certain persons from being involved in child-related employment, and (b)by means of background checking administered by the Commission and other agencies. 32Safety and welfare of children to be paramount consideration The safety and welfare of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Part. 33Definitions (1)In this Part: ... 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 by a person having the capacity to direct the person in the course of the employment: (i)employment involving the provision of child protection services, ... (vi)employment in wards of public or private hospitals in which children are patients, ... (xv)employment involving the provision of counselling or other support services for children, ... [s 33 in fact identifies 25 specific kinds of employment as "child-related employment". Those I have extracted are the most relevant to the circumstances of this case.] Division 2 Prohibitions on child-related employment Subdivision 1 Persons prohibited from being employed in child-related employment 33BProhibited persons (1)For the purposes of this Division, a prohibited person means: (a)a person convicted of a serious sex offence ... (b)... (2)For the purposes of this Division, a person is not a prohibited person in respect of an offence if an order in force under Subdivision 2 declares that this Division is not to apply to the person in respect of the offence. (3)In this Division: ... serious sex offence means (subject to subsections (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 ... (the exceptions in sub-s (4) and sub-s (5) are not relevant) 33COffences relating to prohibited persons (1)A prohibited person must not: (a)apply for, or otherwise attempt to obtain, child-related employment, or (b)undertake child-related employment, or (c)remain in child-related employment. Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both. (2)... 33D... Subdivision 2 Review of prohibition of employment of prohibited persons 33FDefinitions In this Subdivision: ... review application means an application under section 33H or 33I. ... 33HCommission may make declarations concerning prohibited persons (1)On the application of a prohibited person, the Commission may make an order declaring that this Division is not to apply to the person in respect of a specified offence. (2).... (3)Orders under this section may be made subject to conditions. (4)... (5)... (6)... (7)If the Commission considers that an applicant under this section poses a risk to the safety of children or, for whatever reason, cannot make a decision as to whether the applicant poses such a risk, the Commission is to notify the applicant in writing that: (a)the Commission cannot make an order under this section, and (b)the Commission will take no further action in relation to the application, and (c)the applicant may apply under section 33I to the Industrial Relations Commission or the Administrative Decisions Tribunal for an order declaring that this Division is not to apply to the person in respect of a specified offence. 33IIRC 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 Division 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)... (4)... (5)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 or section 33H 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. (6)Orders under this section may be made subject to conditions. (7)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. 33JMatters to be considered in determining review applications (1)The Commission or a relevant tribunal is not to make an order on a review application unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children. (2)In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (3)In deciding whether or not to make an order in relation to a person, the Commission or 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, (b)the period of time since those offences were committed, (c)the age of the person at the time those offences were committed, (d)the age of each victim of the offences at the time they were committed, (e)the difference in age between the prohibited person and each such victim, (f)whether the person knew, or could reasonably have known, that the victim was a child, (g)the prohibited person's present age, (h)the seriousness of the prohibited person's total criminal record, (i)such other matters as the Commission or tribunal considers relevant. ..." 4The following observations may be made of the Act, so far as is relevant to the present proceedings. The Act takes as one of its stated purposes the provision of safeguards and the imposition of prohibitions relating to child-related employment (which is extensively and in considerable detail defined in s 33(1)). 5Part 7 was enacted with the specific object of protecting children. The paramount consideration in the operation of Pt 7 is the safety and welfare of children, and in particular protecting them from child abuse. One of the means by which the object is sought to be achieved is a prohibition on certain persons engaging in child-related employment (s 33C). These are called "prohibited persons". A presumption is created (s 33J(2)) that persons who come within the definition of "prohibited person" pose a risk to the safety of children. The presumption may be rebutted. The onus of rebuttal lies on the prohibited person. 6Division 2 of Pt 7 is specifically directed to prohibitions on child-related employment. Its central provision is s 33C, which prohibits (and creates a criminal offence of breach of the prohibition) a "prohibited person" (i) applying for, (ii) attempting to obtain, (iii) undertaking, or (iv) remaining in, child-related employment. 7"Prohibited person" is defined in s 33B(1) to include a person convicted of a serious sex offence. "Serious sex offence" is defined, relevantly, to include an offence involving sexual activities or acts of indecency committed in NSW and punishable by penal servitude or imprisonment for 12 months or more. It is of some interest that there is no requirement that such an offence was committed against a child (although some of the other offences that constitute serious sex offences do have that requirement). For the purposes of the prohibition, it is immaterial when the serious sex offence was committed. Moreover, although I have not cluttered the above extract of relevant legislation by including all of the offences that constitute serious sex offences, it is also immaterial that the offence was committed outside NSW, provided that the conduct in question would, if committed in NSW, have been punishable in the same way. 8Subdivision 1 is absolute in its terms. It creates an absolute prohibition on the engagement by a prohibited person in child-related employment. It is in Sub-div 2 that the absolute quality of Sub-div 1 is, to a limited extent, diluted. Subdivision 2 makes provision for some exemptions from the prohibition. It permits an order to be made, on application by a prohibited person, by the Commission (s 33H) or by a "relevant tribunal" (s 33I) declaring that Div 7 is not to apply to that person in respect of a specified offence. (The ADT and the Industrial Relations Commission ("the IRC") are the "relevant tribunals".) Where such an order is in force, the person the subject of the order is not (or ceases to be) a prohibited person (s 33B(2)). Such an order may be made subject to conditions (s 33H(3), s 33I(6)). Certain additional provisions, not here relevant, apply when the Commission proposes to make, or makes, an order subject to conditions. Since those provisions do not apply to an order made by the ADT, it is not necessary to take up time with them. 9The same rigorous test applies whether the application is made to the Commission, or to either of the relevant tribunals. By s 33J(1) an order is not to be made unless the Commission or the relevant tribunal is satisfied that the applicant does not pose a risk to the safety of children. By s 33J(2) the presumption referred to above, that a prohibited person poses a risk to children, is created. The circumstances required to be taken into account by the Commission, and by the relevant tribunals, in considering an application for such an order, are set out in s 33J(3). They appear in the extracts of the legislation above, and it is unnecessary to re-state them here. 10The legislation has, in effect, provided two separate avenues, not mutually exclusive, for a prohibited person to seek the exemption Sub-div 2 envisages. One avenue is to the Commission. The other is to one of the two relevant tribunals. Failure to obtain an order in the Commission does not preclude an application to a relevant tribunal. Indeed, the Act recognises that the Commission may not be in a position to make a decision as to whether the prohibited person poses a risk to children (or, put another way, whether the prohibited person has displaced the presumption created by s 33J(2)). (It may be supposed that this is because the Commission acts administratively, and lacks powers to obtain evidence that are available to tribunals with judicial or quasi-judicial authority.) In any event, where the Commission declines to make an order, whether because it considers that the applicant does pose a risk to the safety of children, or because it considers itself unable to make such a decision, the applicant is entitled to seek an order from a relevant tribunal (s 33H(7)). Further, the Commission is required to notify the applicant of that right. 11Finally, I note that an appeal, limited to a question of law, lies to this Court from a decision of the ADT (but not the IRC). Left unstated is the extent of the power of this Court where error of law has been established. 12I turn now to the facts of the present case.
The relevant facts and circumstances 13The evidence discloses the following facts. The defendant, who is identified as VR, was born in Iran in 1950. He lived much of his life in Russia and achieved qualification in air traffic control engineering in Iran and in pharmacy in the Philippines. Subsequently, he qualified as a medical practitioner in Belarus. He was granted refugee status in Australia in 1984. 14On 22 August 1991, after a jury trial, he was convicted of one count of indecent assault, and two counts of aggravated indecent assault on a person under the age of 16 years and under his authority. The offences were committed in 1985 and 1986. In each case the victim was the then 10 year old daughter of a woman with whom the defendant lived in a de facto relationship. Each offence rendered the defendant liable to imprisonment for more than 12 months and was therefore a serious sex offence within the meaning of s 33B(3)(a) of the Act, and. 15As a consequence of those convictions the defendant is, within the meaning of s 33B(1) of the Act, a prohibited person (although the offences were committed and the convictions entered before the Act came into force). 16On 27 January 2010 the defendant applied under s 33H of the Act to the Commission for an order declaring that Div 2 of Pt 7 of the Act does not apply to him in respect of the offences. By s 33J the Commission had power to make such an order only if it were affirmatively satisfied that the defendant did not pose a risk to the safety of children. On 4 August 2010 the Commission notified the defendant that it was unable to make that determination and that, therefore, it could not make the order he sought. It did not state expressly whether it considered that he did pose such a risk, or whether there was some other reason that it was unable to reach such a conclusion. In accordance with s 33H(7) the Commission therefore advised the defendant of his right to seek an order from the IRC or the ADT. 17On 1 September 2010 the defendant made an application to the ADT. He gave as his reason for seeking the order that he was unable to work in the medical profession in Australia. 18A hearing took place in the ADT, before a judicial member, over four days in May, June and October 2011. The defendant gave evidence. Expert reports were provided, and evidence given, by a psychiatrist (Dr Jonathan Phillips), called by the Commission, and a psychologist (Dr Katie Seidler), called on behalf of the defendant. A report of another psychiatrist, Dr Bruce Westmore, tendered by the defendant, was admitted (over objection), although Dr Westmore was not available to give oral evidence. 19On 4 May 2012 the ADT handed down its decision. It is unnecessary to go into the detail of the reasoning. The ADT referred at some length to the expert reports, and said that it placed greater weight on that of Dr Seidler than that of Dr Phillips. The decision is largely unexceptional, other than with respect to the matters below. An important aspect of the decision is to be found in para 108. The ADT said: "In the circumstances, I am not satisfied that [the defendant] has successfully rebutted the presumption of risk to the safety of children under s 33J(2). Furthermore, having regard to the paramount consideration for the safety and welfare of children provided in s 32 of [the Act], I do not consider that [the defendant] has rebutted the presumption of risk so as to satisfy me that the paramount consideration under the Act could or would be given its true effect if the applicant (sic) were to be granted." 20Translated into the language of s 33J(1), this was a clear statement that the ADT was not satisfied that the defendant did not pose a risk to the safety of children. The consequence of that conclusion was that the absolute prohibition on making an order contained in that sub-section came into effect. It was not open to the ADT, in the light of that finding, to make an order of the kind sought by the defendant. 21However, the ADT went on to say, in [109]: "Having failed to satisfy the Tribunal that he does not pose a risk to the safety of children, it is necessary for me to consider whether conditions can and should be imposed on the applicant under s 33I(6) in order to reduce any future risk he might present to children in the future." In [110] the ADT stated the view that: "... conditions could be imposed to reduce the risk that [the defendant] might present to children." 22In the result, the ADT made the following order: "(a) It is declared that Division 2 of Part 7 of the Commission for Children and Young People Act 1998, does not apply to [the defendant] in respect to the offence of indecent assault ... and two counts of indecent assault person under 16 under authority ... subject to the following conditions: (i) [the defendant] shall not undertake employment involving children under the age of 18 years; and (ii) [the defendant] shall give a copy of this order to the Chief Executive Office or Clinical Director of any hospital, nursing home or medical practice in which he works. (iii) [the defendant] shall, should he make application to the Australian Medical Council for registration as a medical practitioner, provide a copy of these reasons to the Australia (sic) Medical Council. (iv) the Registrar is requested to provide a copy of these orders to the Commissioner of Police, New South Wales Police." It is against that order that the Commission, as plaintiff, now appeals. 23The grounds of the appeal are stated as follows: "1. The Tribunal at paragraph [108]-[110] misapprehended its powers and functions under [the Act] in relation to imposing conditions in order to be satisfied that [the defendant] does not pose a risk to the safety of children, per s 33J(1). 2. The imposition of purported condition (i) in the declaration made by the Tribunal is not authorised by [the Act]. 3. The Tribunal failed to afford the plaintiff procedural fairness by imposing a purported condition which had not been sought by either party nor raised during the hearing, thereby denying the plaintiff an opportunity to address the Tribunal in relation to the condition. 4. In the alternative to grounds 1 and 2, the Tribunal failed to give adequate reasons for finding that the imposition of a condition that [the defendant] 'not undertake employment involving children under the age of 18 years' satisfied the requirement in s 33J(1) that [the defendant] 'does not pose a risk to the safety of children'. 5. The Tribunal failed to give any reasons, or in the alternative failed to give adequate reasons, for making a declaration that permits [the defendant] to apply for child-related employment, whilst preventing him from 'undertaking employment involving children under the age of 18 years'." 24The principal complaint made on behalf of the Commission concerns condition (i) as imposed by the ADT. The complaint is that the condition is not authorised by the Act, and that the ADT lacked power to impose it. 25A secondary complaint is based upon the assertion (which was not contested) that the condition was imposed although it had not been sought by either party, and no notice had been given to the parties of consideration being given to such a condition. A third complaint, which can be briefly stated, concerns the extent to which reasons were given for imposing the condition. 26The complaint made on behalf of the Commission that the condition was not "authorised" by the Act is well made. It is true that no explication is provided in the Act of the nature of the conditions that might be imposed by the ADT (see s 33I(6)). A literal reading of s 33I (and s 33H), together with s 33J(1) and s 33J(2), could produce a construction that, unless the s 33J(2) presumption is displaced, no order can be made. In that case, the power to impose conditions is irrelevant. But if the presumption is displaced, then, again, the power to impose conditions is irrelevant. 27The issue of conditions has been considered in relation to the predecessor legislation of the Act (the Child Protection (Prohibition Employment) Act 1998): see "R" v New South Wales Commission for Children and Young People [2002] NSWIRComm 101, per Haylen J, a decision largely endorsed in Commission for Children and Young People v V [2002] NSWSC 949 per Young CJ in Eq (as he then was). Although that legislation was not identical to the Act, it was substantially similar (with the important distinction that there was no equivalent of the s 33J(2) presumption, a circumstance that Haylen J regarded as of some significance: see [90]-[101]). 28Haylen J and Young CJ in Eq both took the view that the existence of the power to make an order subject to conditions must be taken to imply that even where the Commission or relevant tribunal is not satisfied that the prohibited person does not pose a risk to children, where the imposition of a condition or conditions may satisfactorily ameliorate that risk, then an order may be made, subject to the relevant conditions. 29Although the wording of the Act may not in a literal sense readily accommodate that approach, it is in my opinion, the only reasonable explanation for the inclusion of the power to make an order subject to conditions. Conditions may be imposed that render a risk that otherwise would exist, and therefore preclude the making of an order and declaration, one within acceptable limits. 30One problem with condition (i) is that it is more restrictive than the prohibition contained in s 33C, when taken with the definition of "child-related employment". The prohibition is on seeking or engaging in specified employment "primarily" involving direct contact with children (ie persons under 18 years of age) unless under the direct supervision of a person in authority. The condition imposed precludes the defendant undertaking any employment involving children - even where that involvement is not the primary focus of the employment, and even where the defendant is under the direct supervision of a person in authority. 31The condition negates, or nullifies, the order, and puts the defendant in a worse position than he would have been in had the order not been made, and the statutory position retained. However, this is not an appeal by the defendant, and he makes no complaint about the condition. 32A more important flaw is that, properly analysed, the condition shows clearly (as was stated by the ADT) that the defendant had failed to rebut the presumption. It is not a condition that, if observed, ameliorates the risk that the defendant is presumed to pose to children. It underscores that the ADT considers that he does pose a risk to children. It is therefore correct to say that it is not a condition authorised by the Act. 33Given that on a proper reading of the ADT's reasons, and the order it made (most especially the condition) the ADT found that the defendant had failed to displace the s 33J(2) presumption, it was not open to the ADT to make the order and the declaration. 34At the hearing of the appeal, counsel who appeared for the defendant conceded that there were "real difficulties" in the decision, and, sensibly, did not attempt to support it. The concession was well made. 35Error of law has been established. It is therefore unnecessary to consider the remaining grounds of appeal. The appeal must be allowed.
Orders 36As I have mentioned above, the Act does not specify what orders this Court can make following an appeal. 37Recourse was therefore had to s 75A of the Supreme Court Act 1970, which, it seems to me, is the only legislation applicable. Although that section (by sub-s (4)) has effect subject to any other Act, no other Act was advanced as limiting its applicability. By sub-s (10) this Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires. 38That is a very broad power. 39Counsel for the defendant did not advance any argument to the contrary of that proposition. Accordingly, the orders I make are: (i)Appeal allowed; (ii)The decision of the Administrative Decisions Tribunal of 4 May 2012 is set aside; (iii)The defendant's application for an order under s 33I of the Commission for Children and Young People Act 1998 declaring that Pt 7, Div 2 of that Act does not apply to the defendant in relation to the offences of indecent assault and two counts of aggravated indecent assault is dismissed. 40The plaintiff also sought an order that the defendant pay the costs of the proceedings. I have given consideration to that. However, in the light of the uncontested assertion on behalf of the Commission that the error was in no way induced or contributed to by the defendant, it seems to me that it would be unfair to visit the costs of correction on him. In this respect it is relevant that he very sensibly (through his counsel) did not attempt to defend the order. I decline to make an order for costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2012
Commissioner for Children and Young People
VR