D and The Commission for Children and Young People [2001] NSWIRComm 312

JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MARKS J Tuesday 4 December 2001 Matter No IRC 5236 of 2000 D and The Commission for Children and Young People Application under s 9 of the Child Protection (Prohibited Employment) Act 1998

1 This is an application brought under s 9 of the Child Protection (Prohibited Employment) Act 1998 ("the Act"). The applicant who was born on 13 June 1945 was employed as a teacher with the New South Wales Technical and Further Education Commission (TAFE) and has been so employed since 1978. He has taught a number of trade related courses. On 16 June 1992 the applicant was convicted at the Wagga Wagga District Court of an offence under s 66C of the Crimes Act 1900. The applicant had pleaded guilty to a charge that on 19 January 1991 he had sexual intercourse with a girl who was then aged 15. In fact, the applicant had had a sexual relationship with the young girl for a period of about six months, for two months of which she was under the age of 16.

2 By reason of the provisions of the Act the applicant has committed a serious sex offence as therein defined and is prohibited from applying for, undertaking or remaining in "child related employment" as defined in the Act unless exempted by reason of an order made under s 9.

3 Section 9 is in the following terms: (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

(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,

(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.

4 By reason of s 9(4) this Commission is precluded from making any order unless it considers that the applicant does not pose a risk to the safety of children.

5 I should state that the applicant through his solicitors and the respondent Commission for Children and Young People sensibly reached agreement between them about the terms of orders which, if the Commission sought fit to make them, could conveniently apply to the applicant with respect to his employment with TAFE which would allow that employment to continue.

6 The agreement reached between the parties is that declarations be made to the following effect: "The Commission: 1. Declares that the Child Protection (Prohibited Employment) Act 1998 does not apply to the Applicant in relation to the serious sex offence of "Sexual intercourse with a child between the ages of 10 and 16, namely 15" pursuant to the s 66C of the Crimes Act 1900 for which the applicant was convicted on 16 June 1992, subject to the conditions that: (i) The applicant only conduct teaching duties and associated non-teaching duties as part of his position of Teacher of Welding and Fabrication and explosive courses with the Riverina Institute of TAFE; (ii) The applicant not engage in any other activities arising out of his employment with Riverina Institute of TAFE that involve direct unsupervised contact with persons under the age of 18 years; (iii) The Institute Director, Riverina Institute of TAFE and the applicant's immediate supervisor be informed of the terms and conditions of this Order; (iv) The applicant not participate in any other child-related employment; (v) The applicant not participate in any voluntary activities with persons under the age of 18 years."

7 The applicant had known the young girl involved in the commission of the offence for some years prior to the offence occurring. He had shared an interest in horse riding with her and her family. At the time that the offence occurred the applicant was not in any social relationship, and lived alone. He said in evidence that a number of young people from the riding club would attend at his house from time to time. In particular two young girls would attend his house and carry out household chores for him.

8 The applicant described the circumstances giving rise to his sexual relationship with the young girl as something which evolved over a period of time. He said that he was sorry that it had occurred, he was remorseful and regretted that part of his life.

9 Evidence tendered in the proceedings was to the general effect that the applicant had undertaken an extensive number of communal activities and was highly regarded as a member of the local community where he lived as well as by his work colleagues. Despite having taught for many years, including the carrying out of teaching duties associated with persons of a relatively young age, no complaints had ever been raised concerning the applicant's conduct. Prima facie, therefore, his circumstances could be said to attract some sympathy in terms of the application now before the Commission.

10 However, there is one other matter which must be taken into account in determining these proceedings. About two years after the offence occurred, the applicant commenced a relationship with a young woman who was a friend of the young girl involved in the commission of the offence. This young woman was aged about 20 at the time that the relationship commenced. The applicant was then aged 49. The applicant and this young woman have been in a de facto relationship from 1994 to the present time and remain living together. I expressed concern to the parties as to whether the applicant had a predilection towards relationships with young girls or young women. The applicant attended a Commission hearing for the express purpose of giving evidence about these matters. He denied any other relationship than that in which he was presently involved. He stated that he understood why concern would be raised in all of the circumstances. He acknowledged the responsibility which persons who were employed in and about educational institutions had with respect to persons attending those institutions, and in particular the complete confidence that attendees should have in the integrity and conduct of teaching and other staff.

11 The applicant relied on an opinion expressed by Dr Bruce Westmore a forensic psychiatrist who produced a report dated 6 March 2001. Dr Westmore concluded that the applicant showed "no evidence of suffering from a mental illness and there is no evidence that he has a personality disorder. He does not suffer from the condition, paedophilia." Dr Westmore noted that the applicant also had "a number of very positive personality strengths and attributes." Whilst Dr Westmore was not able to say that the applicant would never re-offend because such a statement could never be made about any person, he thought that the offending behaviour was more an aberration "than a reflection of a significant psycho-sexual disorder or personality or pathology which might suggest that such behaviour is highly likely to occur in the future." He thought that the risk of re-offending, if it existed at all, would be "extremely low".

12 The respondent tendered a report of Jenny Howell a consulting psychologist dated 16 June 2001. Ms Howell particularly focused on the likelihood that the applicant might re-offend and the risk factors in that context. Ms Howell thought that there was a risk that the applicant might re-offend. This was because he knew that the young girl was under age 16 when the offence occurred and must have been aware of a code of conduct formulated by his employer with respect to inappropriate conduct around students and young people. She thought that "this behaviour is the strongest predictor of a risk for re-offence." However, Ms Howell thought that the risk of re-offending was a low one.

13 Ms Howell was of the opinion that the orders which were the subject of agreement, and which the Commission was asked to make "appear to adequately protect the safety of children and young people, by limiting (the applicant's) contact with them within his employment and any voluntary activities. This is of course subject to (the applicant's) compliance with the orders."

14 I am advised that the applicant's employer is fully aware of, and supportive of, the consent orders negotiated between the parties.

15 I regard this application as finely balanced. There was a vast age gap between the applicant and the young person against whom the offence was committed. The offence is a serious one and the applicant was of mature age and should have known and understood all of the ramifications surrounding his conduct. In addition, the applicant commenced a relationship with another person of young age shortly thereafter.

16 On the other hand, the applicant's current relationship has subsisted for some time and the proposed consent orders severely curtail the applicant's employment opportunities and are limited to work associated with a particular campus.

17 Although the applicant does have a criminal record with respect to another offence, it is a minor matter which occurred when he was a youth and is unrelated to any matter which would have any relevance to these proceedings.

18 On balance, I conclude that it is appropriate to make a declaration and orders under s 9 of the Act which is subject to conditions as contemplated by s 9(9), in the terms agreed upon between the parties.

19 Accordingly, I hereby make orders in terms of the orders set out in para 6 above. I direct that the Industrial Registrar serve a copy of these orders on the Commissioner of Police, the Department of Education and Training and the Riverina Institute of TAFE.

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.