An application was filed on 28 March 2018 with the New South Wales Civil and Administrative Tribunal seeking a review under the Child Protection (Offenders' Registration) Act 2000, and Passport Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017.
The orders sought were that: the original decision be re-instated, that amendments and provisions to be included so that double punishment does not occur and fairness and equality is applied to all who fall under the Act, and in line with other Acts in Australia. The applicant filed submissions attached and various cases which have been referred to in these reasons.
These proceedings have been heard over the course of three days, two of them being part days, and one of them being a full day's hearing.
During the course of these proceedings various issues came up which will be addressed by the Tribunal in order of their importance as threshold or preliminary issues. We understand that this is the first application under these legislative provisions to be determined by the Tribunal.
The issue that came up part way through the proceedings relates to whether this Tribunal has jurisdiction to hear this application. The practical reason that the matter arose in discussions between counsel for the respondent and the Tribunal relate to the fact that the applicant resides in another jurisdiction, by that I mean outside the State of New South Wales, and is currently, as the Tribunal understands, resident in Queensland.
On the first day of the hearing the applicant gave his evidence via audio/visual link from Northern Queensland. It was not until the second day of hearing that this jurisdictional issue arose.
The issue in summary turns on whether the Tribunal is a court exercising judicial power or it is not so described. The provenance of this issue lies in initially the Commonwealth Constitution 1900 and the cases that have gone to courts of record in recent times from this Tribunal that have touched on this issue to different extents. The initial case being the case of Gaynor v Burns [2017] NSWCA 3, followed by a subsequent case following special leave to appeal to the High Court, that citation being Burns v Corbett [2018] HCA 15.
The constitutional issue arises in s 75(4) of the Commonwealth Constitution. Arising from that is a question as to whether these proceedings are in the nature of an administrative review or general jurisdiction of this Tribunal.
After day one the respondent was asked to provide legal submissions and the applicant was also asked to make any submission he wished on the issue. By way of submissions received in October of this year the respondent's counsel addressed these constitutional and jurisdictional issues.
From par 30 of their submissions onwards the respondent submitted the following:
"An issue has arisen whether the tribunal in this case is being asked impermissibly to adjudicate a matter between a State and a resident of another State within the meaning of that phrase in s 75 (4) of the Commonwealth Constitution arising under ch 3 of the constitution, and whether the tribunal has jurisdiction in respect of such a matter."
The respondent further submitted:
"Without formally objecting to jurisdiction the respondent notes that the applicant is a resident of another State which brings the matter within the diversity jurisdiction in 75(4) of the constitution.
A Federal or State Government body other than a court referred to in ch 3 of the constitution cannot exercise judicial power when a matter is in diversity jurisdiction. The respondent notes that the State's position is that NCAT is not a court referred to in ch 3 of the constitution.
The Appeal Panel of the Tribunal found otherwise in Johnson v Dibbin. The State has appealed that decision and the Court of Appeal has reserved its decision.
The respondent in submissions on this point also referred to the case of Zistis v Zistis [2018] NSWSC 722 where:
"The Supreme Court concluded that the tribunal is not a court of the State and did not have jurisdiction to determine a dispute between residents of different states."
Until the Court of Appeal delivers its decision in respect of the Appeal Panel's decision in Johnson v Dibbin, the leading authority is Zistis v Zistis, the effect of which is that the Tribunal is not a Court of the State.
The respondent went on to submit the factual matters that press this jurisdictional issue on the matter. Importantly at par 33D the respondent submitted in a chronology that "By the time the applicant had commenced proceedings in the Tribunal on 24 March 2018 he was resident in Queensland".
At par 34 the respondent submitted that at the time of his application to the Tribunal the applicant as a resident in Queensland commenced an application against an agency of the State of New South Wales. The application therefore raises a matter between a State and a resident of another State and therefore a matter within s 75(4) of the Constitution.
In concluding, the respondent submitted that the Tribunal may wish to await the decision of the Court of Appeal before deciding this issue. The jurisdictional issue is a somewhat complex one and the Court of Appeal has been reserved for many months now. The position of the Tribunal relying on the case of Johnson v Dibbin, Gatsby v Gatsby [2018] NSWCATAP 45. The appeal panel of this Tribunal was constituted by His Honour Wright J, President as he then was, Boland ADCJ, Deputy President and Dr J Renwick SC, Senior Member.
In a joint decision the Appeal Panel unanimously found that the Tribunal in first instance was able to exercise jurisdiction, the reason being because the Tribunal is a court of a State for the purposes of Ch III of the Constitution and s 39 of the Judiciary Act 1993 (Commonwealth). The case of Zistis found to the contrary and I note that that case was dealing with the Residential Tenancies Act as was the case of Johnson.
Ms Douglas Baker, counsel for the respondent, submitted that Zistis should be preferred or followed by the Tribunal because it is the more recent decision. There was no decision made that it was in any way more or less binding on the Tribunal than the case of Johnson. Ordinarily in the hierarchy of precedent a decision of a court of record or a superior court is binding on a body below, however, in this instance we note that, irrespective of what power it was exercising, the Tribunal was constituted by at least two judicial officers within the meaning of the Judicial Officers Act New South Wales and that one of those officers, the presiding member, is and has the status of a judge of the Supreme Court of New South Wales.
Without going into the details of the arguments in Johnson, it is necessary to quickly look at a case that was submitted today which was a decision of 31 July 2018 of this Tribunal sitting in the Occupational Division, the case being the Health Care Complaints Commission v Murray [2018] NSW CATOD 119. In that case the Tribunal in written reasons dealt with some similar threshold issues in the first seven pages of those reasons. The questions for the Tribunal were can NCAT determine the complaint. The Tribunal in a preliminary position stated from par [6]:
"For current purposes we will assume but not decide that NCAT is not a court of a State for Ch III purposes. Accordingly two issues must be decided. First, whether the matter required to be determined as a consequence of the referral of the complaint by the commission under s 145C(1) of the National Law by way of an application made under s 40 of the Civil and Administrative Tribunal Act 2013 (NSW). The NCAT Act is a matter between States or between residents in different States or between a State and a resident of another State, s 75(4). Second, if the answer to that question is yes whether the power being exercised by the tribunal is judicial rather than administrative in nature."
Before progressing with the decision of HCCC v Murray, we find that these proceedings concern proceedings which enliven s 75(4) of the Commonwealth Constitution. From par 16 onwards in the decision of HCCC v Murray the Tribunal asked the question whether:
"In determining a complaint brought under the National Law is NCAT exercising administrative or judicial power. To answer this question it is necessary to examine the structure of the National Law."
The Tribunal then went on to summarise the provisions of the National Law and its purpose.
Importantly, at paragraph 19, the following is said:
"Established by s 7 of the NCAT Act, NCAT has various jurisdictions including a general jurisdiction. Determination of a complaint referred under the national law is an exercise of the Tribunal's general jurisdiction, s 29 of the NCAT Act".
Paragraph 20:
"The question to be determined is whether the power to determine a complaint referred under the national law can be characterised as administrative or judicial".
In Johnson v Dibbin the appeal panel noted at paragraph 50 that:
"When considering the nature of judicial power and how it is to be distinguished from executive or administrative power it has proved difficult, if not impossible, to frame an exclusive and exhaustive definition of judicial power".
Identifying the line between administrative and judicial power is a difficult task in part because there are features common to both. In Precision Data Holdings Limited v Wills [1991] at HCA 58 the High Court commenced at paragraph 189, commented at 189:
"Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power".
Paragraph 21:
"The power exercised by the Tribunal in determining a complaint referred under the national law shares similarly accepted criteria of a judicial power such as the delivery of a binding and authoritative decision and a requirement to observe principals of open justice, principals and the rules of procedural fairness, however in our view the power is more aptly characterised as administrative".
In Albarran v The Members of the Companies Auditors & Liquidators Disciplinary Board [2007] HCH 23, the High Court held that exercise of the power to cancel and suspend the registration of a person as a liquidator by the companies, auditors and liquidators disciplinary board is in the nature of administrative not judicial power.
While Albarran is not authority for the proposition that the power exercised by a body in occupational disciplinary proceedings in all cases will be administrative nature is nonetheless supportive of the proposition that the power to determine a complaint ordered by the national law is administrative in nature.
The Tribunal goes on to look at some Victorian cases in VCAT, the Victorian Tribunal and concludes at paragraph 22 that in the case of Medical Board of Australia v Kemp [2018] VSCA168:
"In hearing and determining a matter referred to it by the Medical Board of Victoria VCAT is not involved in a process that represents a curial adjudication of private rights. That is because;
(a) the VCAT proceedings in regulatory in nature and services a public purpose by forcing standards applicable to health practitioners;
(b) the proceedings is not a dispute inter parties. VCAT is hearing about a matter referred to it for determination by regulatory body that performs a public function, there's no private interests in the outcome of the proceeding;
(c) relatedly, the outcome of the proceeding is not determinative of private rights. The right to practice as a registered health practitioner and conditions on which that may be allowed to occur involved the regulation of a public licence rather than the conferral of a private right; and
(d) the rules of evidence and practices and procedures that apply to the Courts have no application except to the extent they are adopted by VCAT".
Paragraph 23.
We conclude that the power by the tribunal in these proceedings is administrative not judicial in nature. It follows that we have power to hear and determine the compliant.
In the current proceedings the Tribunal adopts the position of the appeal panel in Johnson v Dibbin and determines that the purposes of these proceedings the Tribunal has jurisdiction to hear the dispute. We adopt the reasoning of the appeal panel as they apply to the facts and circumstances in this case and so find.
Moving on to the next issue, which is not a threshold issue but appears to have arisen by way of an interlocutory issue, the question for the Tribunal that arose partly in the history of this application coming to the Tribunal, is whether the applicants reporting obligations had expired prior to the making of this application or whether they remain in force until a period some 15 years after him entering the register under the Act.
This matter took up a significant amount of time on day 1 of the hearing. The Tribunal in noting the Act, being the Child Protection Offenders Registration Act 2000, observes that its jurisdiction is very limited. The power that the Tribunal exercises is set out in division 7.
Section 15 deals with suspension and extension of reporting obligations. Section 16 refers to NCAT may exempt persons from compliance with reporting obligations. Importantly, s 16(1) says the following:
"This section applies to a registrable person;
(a) Who is required to continue to comply with reporting obligations imposed by this part for the remainder of his her life; or
(b) This reporting period has been extended under s 15(3) whether or not he or she is a person referred to in para A".
It is uncontroversial between the parties that the applicant is not a person who is required to report and remain on the register in the absence of any order for the remainder of his or her life.
The conviction status record shows that this applicant is not a person on the current records required to report for life. The live dispute that arose in these proceedings was whether a period of ten years applied or a period of 15 years applied. The Tribunal was required to adjourn and have some investigation into the legislative amendments and savings provisions.
We note the assistance given by the respondent in this regard. The respondent's position is that the legislation and the factual chronology of when certain events took place relating to the applicant's processing within the criminal justice system mean that the provision of a ten year reporting period does not apply to him, but rather he is captured by the provisions that he has mandatory reporting requirements and obligations on the register for a period of 15 years.
The applicant opposes that submission and maintains that his reporting obligations are only enlivened for a period of ten years. The question for this Tribunal is whether it strictly has power to make any determination on the argument or whether in coming to the position of how it might exercise its power under div 7 and particularly s 16 it needs to ascertain the relevant start date.
On the applicant's view the start date commenced ten years after the reporting obligations and on the respondent's view the start date of any discretion or power the Tribunal might exercise commenced 15 years after.
Section 16 says at 16(3):
"On the application of the registrable person referred to in subs (2) the Civil and Administrative Tribunal may make an order suspending registrable persons' reporting obligations."
Section 16(2) says:
"If in the case of a registrable person referred to in subs (1)(a)"
A section which deals with a person on the register for life,
"the person may apply to the Tribunal".
Section 16(3)(a) more relevantly says and I quote:
"On the application of a registrable person referred to in subs (1)(b) the Civil and Administrative Tribunal may make an order suspending the registrable person's reporting obligations for the length of time for the which the registrable person's reporting period was extended under s 15(3)."
Section 15(3) refers to fact that the registrable person's reporting obligations continue, is extended by the length of time for which those obligations are suspended from the time under subs (1)(b).
"If during the time in which the obligations are suspended the registrable person was:
(a) Travelling outside Australia for one month or more or is resident outside Australia and is not required to report under any corresponding Act."
In practical terms the question is when the applicant or any applicant who has reporting obligations travels overseas to a body that does not have reporting and supervision provisions under a commensurate treaty or piece of legislation then because in practice they cannot be supervised, their reporting obligations are suspended. That has the effect of staying the reporting obligations in that for want of a more legal phrase, time stops and when the reportee returns to the jurisdiction time begins to count once again.
These matters mean that in effect the person subject to reporting obligations is required to report and is under supervision envisaged by the Act for the total period that the legislature intended and in the absence of Parliamentary Hansard Second Reading Speeches we infer that this is the practical import of this division and we so find.
The question as to whether the ten years or 15 years applies will be answered in order to ascertain the end reporting date of the extended provisions and whether the Tribunal applies a reduction or not and through that route we determine which law applies to this applicant.
As indicated earlier the respondent maintained from the outset that the reporting period for this applicant was 15 years. The applicant maintained that he had received notice and also verbal advice that his reporting period had ceased and the Tribunal noticed after day one of the hearing that there had been legislative amendments to the Act in the intervening years.
What became clear as the matter progressed was the applicant was dealt with for certain offences at different times and some matters were decided earlier within the criminal courts and some later.
The applicant pleaded guilty to and was convicted on 16 July 2003 of the offence of sexual intercourse with a minor, that offence having occurred on 22 July 2000. That offence is a registrable offence for the purposes of the Act.
The applicant also had a further matter dealt with on Form 1 which is a schedule attached to the indictment being the matter involving sexual intercourse with a different minor on the same date and common assault with that minor.
Arising from the same circumstances of the criminal behaviour the applicant was also convicted on 8 November 2002 of armed robbery. That sentence commenced on 11 January 2002 and concluded on 10 May 2007. Some eight months later on 16 July 2003 the applicant was also convicted of robbery whilst armed with a dangerous weapon. He was sentenced to seven years imprisonment commencing 28 October 2003 and concluding on 27 October 2010.
The Tribunal outlined these matters to show that different sentences and different convictions, reporting or otherwise, arose at different times. It is not necessary to go to the circumstances of why the applicant may have been a convicted inmate on some offences and a remandee on other offences at the same time. As foreshadowed, the respondent has always maintained that the 15-year provisions applied to the applicant. The applicant, in submissions, maintained that the ten-year period applied to him. This was repeated in verbal statements before the Tribunal on each of the sitting days. Section 14A of the Act provided as follows after the 2004 Amendment Act:
"14A - Lengthy Reporting Period - Subsection (1): A registrable person must continue to comply with the reporting obligations in what is pt 4A. Eight years if the person has only ever been found guilty of a single class 2 offence, or (b), 15 years if a person has only ever been found guilty of a single class 1 offence, or (ii), has ever been found guilty of more than a single registrable offence that is not covered by paragraph (c) or, paragraph (c) for the remainder of the person's life."
Further details follow in the subsections. Section 14A(3) provides,
"a reference in subs (1) to an offence, extends to an offence committed before the commencement of subsection".
Section 14A(4) provides:
"For the purpose of this section, (a) two or more offences arising from the same incident which triggers a single offence, or two or more offences arising from the same incident are to be treated as a single class 1 offence and at least one of those offences is a class 1 offence."
In our view, the provisions of s 14A(1)(b) apply to the applicant. The applicant's reporting obligations commenced on 10 July 2008 and continued to apply for 15 years from then. The respondent made a submission on 17 August 2018, that the applicant was in government custody immediately before the commencement of s 3A, being that the applicant was in government custody on 29 September 2005 and therefore the applicant would fall within the carve out in para (b) of the definition of existing registrable person. The definition of existing registrable person arises in pt 3 of sch 2 of the Act and prior to delivering these reasons, the Tribunal has availed itself of a full copy of the Act. Existing registrable person means:
"A person who was immediately before the commencement of s 3A as inserted by the amending Act, a registrable person under this Act other than (a), a person who was in government custody immediately before that commencement, or (b), a person who was a registrable person because of a registrable offence committed in a five jurisdiction and had not carried out any reporting obligations before that commencement."
On this analysis, the respondent submitted that the applicant would not be an existing registrable person for the purpose of the savings and transitional provisions, and so the earlier version of the Act, providing for ten years' registration period does not apply to this applicant. Because the applicant's reporting obligations commenced on or after 1 October 2004, that is on 10 July 2008, the applicant's reporting period is to be calculated in accordance with div 6 of pt 3 of the Act, in particular s 14A of the Act. The applicant is not a person to which the life requirement applies and the applicant has never only been found guilty of a single Class 2 offence. For those reasons, a period of eight years and a period of life of reporting obligations did not apply. It therefore follows and we so find, the applicant's reporting period under the Act, is for a period of 15 years.
The matter that the Tribunal has to consider, relates to what is, as foreshadowed, the substantive issue in these proceedings as they persist. That is, whether the applicant should be given the benefit of a discount to the extra reporting period, following the suspension of the reporting period within the provisions of s 16 of the Act. Because of the findings we have made, the only area we can deal with concerns s 16, subs (3A).
Section 16 subs (4) states,
"The Civil and Administrative 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".
Section 16 subs (5) provides some limited guidance on mandatory considerations. The section says:
"In deciding whether to make an order under this section, the Civil and Administrative Tribunal is to take the following matters into account:
a) The seriousness of the reasonable person's registrable offences and corresponding registrable offences.
b) The period of time since those offences were committed.
c) The age of the registrable person, the age of the victims of those offence and the difference in age between the registrable person and the victims of those offences, as at the time those offences were committed.
d) The registrable person's present age.
e) The registrable person's total criminal record.
f) Any other matters the Tribunal considers appropriate."
The section goes on refer to the Children's Guardian being the respondent and some administrative matters.
In reaching our conclusion on any discount we have had regard to the evidence before us.
However, there still remains the issue as to what the extended period is. We make our preliminary finding for the purposes of these reasons and any order that might follow that the period to which any order in the applicant's favour might apply is as follows:
A discount or reduction would be in the nature of a total at this stage of 106 days. It may be that when a further period concerning travel in 2014, 2015 is applied by the Commissioner of Police's delegate a further 51 days come into bearing. I note from exhibit R4 which was tendered in the proceedings today that the Commissioner's delegate is of the view that the further period by which reporting will be increased is 54 days. We observe that on the evidence and submissions before us any further period should be 51 days, that would bring a total discount either to 106 or 157 days.
The applicant filed a case note of the AFP, a supplementary risk assessment report dated 6 September 2007, a risk assessment report of 8 March 2007 and gave evidence and character evidence of an adult woman who provided evidence concerning the applicant dealing positively with her child.
The applicant gave evidence himself at hearing and that evidence has been discussed during the substantive hearing.
We make the following observations about how this approach should be taken. Whilst these proceedings arise under the Child Protection Offender's Act 2000 and the respondent or contradictor under that Act is the Children's Guardian. Ordinarily in any review, administrative or otherwise, before this Tribunal concerning the risk to the safety and wellbeing of children, the Children's Guardian is involved as a decision maker under the "Child Protection (Working with Children) Act 2012". That is not the case in these proceedings. The Children's Guardian functions are more administrative in nature subject to enlivening contradictor or respondent functions arising from an applicant such as DKP in review proceedings before this Tribunal.
We set out this context for the following reason. The term "risk of harm" or "risk of harm to children" or the statutory phrase as it appears in other legislation is not defined or otherwise extrapolated further in this Act or if it is the Tribunal is not aware of such a provision. The words are merely captured in s 16 where it says that "the person the subject of the proposed order does not pose a risk to the safety of children". We infer that at the time any proposed order is made that is when the risk is measured or assessed, not their risk at the time of offending, and not specifically unless there is cogent evidence to indicate otherwise, a future risk. It seems unlikely that a person in the applicant's position, if they did not pose a risk today, if that was the finding of the Tribunal, would for unexplained reasons pose a risk at some time in the future.
There are two further observations we make, one is, that the legislature clearly is of the view that the Tribunal can decide that a person is or not a risk separate to the statutory provisions of the reporting period. In this regard we refer to the fact that in this instance we have found the applicant is obligated to report for a period of 15 years. Yet in 2018 we have been asked to decide his risk. The Act does not say that an applicant may apply for review of the extended reporting period at the conclusion of the substantive reporting period from a calendar perspective. The Act is silent on when a person can apply for review but presumably on the narrow jurisdiction given to this Tribunal the suspended and then extended period must have been applied. If no extended period was to be applied there would be nothing for this Tribunal to review, so in our view the legislature contemplated that this Tribunal could determine risk, notwithstanding the fact that by force of law for a period into the future an applicant is required to report and remain on the register.
The second observation we make is that the purpose of risk being assessed arising from reporting is somewhat more general than under the other legislation we have referred to, namely, the Child Protection (Working with Children) Act 2012.
The objects of this Act were inserted by legislative amendment. We know this because they are titled s 2A. The objects are:
"(a) To protect children from serious harm including physical and psychological harm caused by physical or sexual assault; and
(b) To ensure the early detection of offences by recidivist child sex offenders; and
(c) To monitor persons who are registrable persons; and
(d) To ensure that registrable persons comply with this Act."
Having regard to those matters, it is clear that the term "risk to children" should be considered in a slightly different context to the Child Protection (Working with Children) Act. The reason being that any waiver of reporting period by way of exercise of a discretion of this Tribunal, or in a matter where there was no extension applied would cease by force of a calendar event in the absence of any further offending. For a person not required to report for life, this Act would no longer apply to them in respect of the protection of the safety and wellbeing of children.
We envisage that this provision arises because this Act does not authorise any issue concerning the safety and wellbeing of children over and above that of any other citizen. It does not allow an applicant to engage with children in a work-related context. It does not allow an applicant to engage in child related work, nor does it seek to supervise offenders in respect of their dealings with children. The closest reference we find is in 2A(a) to monitor persons who are registrable persons. We have seen no evidence or submissions as to how that occurs in practice other than in respect of the administrative evidence given about reporting obligations and further obligations concerning leaving of the jurisdiction and matters of that nature.
In our view on the evidence which is before us the question that really arises in this case, and it is not a question to be determined, is whether the applicant is a fit and proper person in respect of reporting obligations being waived or reduced, rather than whether he is a risk to children. Much of his evidence is old and this has been raised with him, however more recent evidence of the adult female witness stands in his favour.
The applicant's evidence as borne out by the lack of adverse material in the intervening years since his parole stands in his favour. That is that no matters of any significance have come to attention. There are matters concerning domestic violence, but we note those matters were in 1998, prior to the significant offending which places the applicant in the register.
Turning to the specific provisions in s 16(5) we find that the person's registrable offences are extremely serious and for these reasons he was given a full-time custodial sentence. In addition, we note that it is 18 years or thereabouts since those offences were committed.
The registrable person was around about 20 years of age at the time of the offending behaviour, which occurred in company. The victims of the offences for which the registration requirements were enlivened were approximately 15 years of age. The registrable person, looking at s 16(5D), would on my calculation now be approximately 38 years of age. The registrable person's total criminal record is substantially covered by the court matters, which include the serious registrable offences.
Section 16(5F) refers to any other matters that the Tribunal considers appropriate.
The applicant was criticised by the respondent in the nature of his response in evidence to this Tribunal in the hearing, and in fairness we have spent some of the protracted time of this case putting those matters to the applicant and seeking to address them or seeking to have him address them. The applicant as far as we are aware has no positive duty other than the duty to tell the truth when making his application to this Tribunal. I can see nothing in s 16 that deals with that matter, merely it is an application which he has an obligation to effectively prosecute in accordance with the ordinary court tribunal civil procedure, or withdraw. The applicant maintains his position on the matter and seeks a finding by the Tribunal on all grounds. He said so much in submissions prepared for today's final hearing.
We note that nothing under the Child Protection (Offenders Registration) Act 2000, (notwithstanding the reporting obligations and monitoring provisions having regard to the objects of the Act), provide any further regulation of a prior offender. What they seek to do in part from submissions received are in some ways monitor a person on the register's propensity to commit crimes in other jurisdictions as well as to monitor their progress in Australian jurisdictions.
The final matter we wish to address concerns the matter just touched upon about the applicant's risk. It is clear from the evidence that for whatever reason the applicant did not disclose all of his overseas travel to the Tribunal.
The overseas travel which has been calculated by the respondent from the relevant Commonwealth agency has been done in the absence of any input from the applicant.
The respondent submitted that the credibility concerns the Tribunal should entertain are relevant for the applicant's credibility and generally in relation to the risk he might pose to the safety of children. The respondent also submitted that the applicant's statutory reporting obligations are relevant to managing his risk of recidivism and his risk to the safety of children.
On that submission we agree that that is the import of what the Act seeks to do. The respondent goes on to submit that the applicant's non-compliance with his reporting obligations is therefore relevant to an assessment of his risk of recidivism and therefore also his risk to the safety of children.
A criticism or query of the Tribunal was that the applicant had not provided any recent evidence to support or supplant the evidence provided concerning his suitability for release on parole. These are the main pieces of independent evidence that the applicant relies upon. In our view ideally the Tribunal would have before it a more up-to-date piece of independent evidence but that is not a mandatory requirement in such an application and in this sort of matter if that requirement was necessary, presumably a provision would be inserted in the Act. However the matter rests with the quality of material which the Tribunal considers, and such an obligation to 'make out their case' would fall to an applicant.
That type of evidence would assist in our navigating the queries about the applicant's disclosure and candour bearing in mind that his independent evidence is now some ten or 11 years old. Balanced with that though is the absence of any government information concerning criminality, assaults or matters of that nature. There is clearly government information concerning lack of compliance with administrative provisions relating to the reporting obligations which go back to safety of third parties but there is nothing else in the nature of his pre-offending 1998 conduct in the nature of domestic violence.
During the course of the hearing it was apparent that the main argument that the applicant was ventilating related to the disparity between the ten and 15 year registration requirement. The additional periods for which the suspension arose were in part smothered by that argument and also in and of themselves inaccurate from all directions until independent and cogent enquiries were made by the respondent in recent weeks or months.
Even with those periods we note that the police calculate a slightly different period. As indicated earlier the offences were very serious. Not by way of mitigation but by way of explanation we note that had the victims of the registrable offences been one year older, because of their behaviour and conduct at the time of those offences we are uncertain as to whether those indictments would have been preferred.
Without criticising the behaviour of victims and not knowing the full context, they engaged in illicit drug use with the primary offenders and the sexual conduct arose in that context where they were one year below the statutory age to be able to give consent to sexual activity. We stress again that this does not mitigate the conduct but explains in some way the circumstances.
We maintain our view that the offences are extremely serious and note that the findings on pleas or otherwise of the Court's found in sentencing that they were serious. The victims were teenage girls, one year below the statutory age to give consent, who were able to give practical consent to certain criminal behaviour proposed by the perpetrators. There is no evidence other than the evidence of persons who had been approached following the use of offensive weapons and a firearm that these offences would have had any different impact on the applicants (as said) if they were a year older. That is not to say that they would not have had a different impact.
The applicant has been offence free since this time and has given evidence in the proceedings.
The manner in which he gave his evidence is considered as being somewhat evasive in that he declined to answer a number of questions and those questions (and lack of response) go to his candour, but we are not satisfied that when the context of these proceedings and its various administrative and technical difficulties are taken in totality, that there was any deliberate attempt to mislead or obstruct the function of the Tribunal in performing its task. Nor do we find that the applicant was deliberately untruthful, but rather lacking in his answers.
We refer again to our observations about the difference of the child protection and risk regime as we envisage it operating under this legislation as opposed to that of other child protection regimes. In our view, it may be appropriate to make an order suspending the original persons reporting obligations for a period of 106 days which commence at the end of the 15 year reporting period and any further days as calculated by the Commissioner of Police for any further reporting period arising prior to today, being a period where the person, the applicant was overseas and not under the supervision of the reporting obligations of the States and Territories of Australia.
In making any order as we will, we are cognisant of the objects of the Act and in particular the long title being an Act with respect to registration and reporting requirements for certain offenders who commit sexual and other serious offences against children and for other purposes.
In our view, predominantly due to the passage of time since the offending, we believe it is appropriate to initially make the order under s 16(3) reducing the period by 106 days.
We also find that there may be further days to be calculated by way of reduction) in addition to the 106 days, to be calculated by NSW Police.
We note that the Tribunal is required to notify the Commissioner of Police of the outcome of these proceedings in accordance with section 16(8).
The Tribunal therefore proposes to make an order suspending the applicant's reporting obligations for the period of 106 days and the additional days as / to be calculated but on current assessment would appear to total 137 days.
[2]
Orders
Having regard to the evidence and material before us, and noting the provisions of s 16 ss (3A), we make the following orders:
1. Pursuant to s 16(3A) of the Child Protection (Offenders Registration) Act 2000 we suspend the applicant's reporting period by 137 days
2. Pursuant to s 16(8) of the Child Protection (Offenders Registration) Act 2000 the Registrar notify the Commissioner of Police of the terms of this order.
[3]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[4]
Amendments
07 January 2019 - Main Heading Corrected.
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Decision last updated: 07 January 2019