Commissioner for Children and Young People v VR

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.