DKP v Children's Guardian

NCAT Appeal Panel|2019-05-17

REASONS FOR DECISION

In 2003, DKP was convicted of a Class 1 offence and sentenced to imprisonment. After an appeal was heard and determined, DKP served a sentence of imprisonment in respect of the Class 1 offence (and others). DKP began to serve his sentence in relation to the Class 1 offence on 11 January 2007 and was released on parole on 10 July 2008. As a consequence of being sentenced for a Class 1 offence, which is a 'registrable offence', DKP became a 'registrable person' within the meaning of the Child Protection (Offenders Registration) Act 2000 (NSW) "the Act".
DKP received a letter from NSW Police Force dated 17 January 2019 which informed him that his matter had been reviewed, and that his reporting obligations as a registrable person were to continue until 24 November 2023. This was at odds with DKP's expectations with respect to the length of the reporting period.
DKP applied to this Tribunal to be exempted from compliance with the reporting obligations described in the letter from the NSW Police Force. DKP's application was purportedly made under s 16 of the Act.
The Tribunal at first instance did not exempt DKP from compliance with his reporting requirements.
The Tribunal made an order suspending DKP's reporting period for 137 days, which was the period by which DKP's reporting period had been extended on account of DKP having been overseas for that period of time during the reporting period, and, whilst overseas, not under the supervision of the authorities under the Act.
DKP has appealed to this Appeal Panel under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW). DKP amended his notice of appeal so that the single ground of appeal before us is: [s] 16(4) - upon proper construction of provision 16(4) of the [Offenders] Reg Act 2000 NSW one would conclude it is a provision for General Exemption at the discretion of NCAT
DKP lived in Queensland at the time of making his initial application to the Tribunal and he continues to live in Queensland.

Registrable offenders and reporting obligations

The Act provides for the establishment and maintenance of a Child Protection Register by the Commissioner of Police (s 19).
The objects of the Act are set out in s 2A: (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.
A person becomes a 'registrable person' under the Act upon being convicted of a 'registrable offence', which includes a Class 1 offence (ss 3 and 3A)
The Act imposes reporting obligations upon registrable persons. Those reporting obligations begin either when the person is sentenced for the offence which makes them a registrable person, or when the person ceases to be in government custody in relation to the offence, whichever is the later (s 14).
Once the reporting obligation has begun the registrable person must provide to the Commissioner of Police (see s 10) his or her 'relevant personal information'. The detailed information which comprises 'relevant personal information' under the Act is set out in s 9. It includes information about the person's name, addresses, distinguishing marks, work, offences and other information about the person's life, and also includes (for example) information about each child with whom the offender has had specified kinds of contact.
The Act, in s 10, imposes an obligation upon a registrable person to report his or her relevant personal information annually. There are also obligations to report changes to the person's relevant personal information (see s 11).
It is a criminal offence for a registrable person to fail to comply with his or her reporting obligations without reasonable excuse (s 17).
The Act provides, in s 14A: 14A Length of reporting period (1) A registrable person must continue to comply with the reporting obligations imposed by this Part for: (a) 8 years, if the person has only ever been found guilty of a single Class 2 offence, or (b) 15 years, if the person: (i) 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 but is not covered by paragraph (c), or (c) the remainder of the person's life, if the person is a registrable person in respect of: (i) a Class 1 offence and the person subsequently commits and is found guilty of another registrable offence, or (ii) a Class 2 offence and the person subsequently commits and is found guilty of a Class 1 offence, or (iii) a Class 2 offence and the person subsequently commits and is found guilty of another Class 2 offence and has ever been found guilty of 3 or more Class 2 offences. Note. A life-long reporting obligation may be suspended under Division 7. (2) Subsection (1) (c) does not apply if the registrable person was not given notice of the person's reporting obligations under this Act or a corresponding Act before the person committed the subsequent offence. (3) A reference in subsection (1) to an offence extends to an offence committed before the commencement of that subsection. (4) For the purposes of this section: (a) 2 or more offences arising from the same incident are to be treated as a single offence, and (b) 2 or more offences arising from the same incident are to be treated as a single Class 1 offence if at least one of those offences is a Class 1 offence.
Section 16 of the Act is headed NCAT may exempt persons from compliance with reporting obligations. The part of s 16 which applies to DKP provides: (1) This section applies to a registrable person: (a) who is required to continue to comply with the reporting obligations imposed by this Part for the remainder of his or her life, or (b) whose reporting period has been extended under section 15 (3) (whether or not he or she is a person referred to in paragraph (a)). … (3A) On the application of a registrable person referred to in subsection (1) (b), the Civil and Administrative Tribunal may make an order suspending the registrable person's reporting obligations for the length of time by which the registrable person's reporting period was extended under section 15 (3). (4) 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. (5) 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 registrable 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 offences 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 matter the Tribunal considers appropriate. (6) The Children's Guardian is to be a party to any proceedings for an order under this section. The Children's Guardian may make submissions in opposition to, or in support of, the making of the order. (7) As soon as practicable after receiving an application under this section, the Civil and Administrative Tribunal must notify the Children's Guardian of the application. (8) The Civil and Administrative Tribunal must notify the Commissioner of Police of the terms of any order made under this section. (9) The Civil and Administrative Tribunal may not award costs in respect of proceedings under this section. (10) A party to proceedings under this section may appeal to the Supreme Court, on a question of law, from any decision of the Civil and Administrative Tribunal in the proceedings. (11) An applicant in respect of whom the Civil and Administrative Tribunal refuses to make an order under this section is not entitled to make a further application to the Tribunal until 5 years have elapsed from the date of the refusal, unless the Tribunal otherwise orders at the time of the refusal. (12) In this section, Children's Guardian means the Children's Guardian appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998.
The Act provides, relevantly, in s 15: 15 Suspension and extension of reporting obligations (1) A registrable person's reporting obligations are suspended for any period during which: (a) the person is in government custody, or (b) the person is outside New South Wales unless the person is a person to whom Division 5 applies or the obligation is under section 11B, or (c) the person is the subject of an order in force under section 16 (or an equivalent order in a foreign jurisdiction), or (d) the person is the subject of an interim supervision order or extended supervision order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017 . (2) The period for which a registrable person's reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under subsection (1) (a). (3) The period for which a registrable person's reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under subsection (1) (b) if, during the time in which the obligations are suspended, the registrable person: (a) is travelling outside Australia for one month or more or is resident outside Australia, and (b) is not required to report under any corresponding Act. (4) The period for which a registrable person's reporting obligations continue is extended by any countable period during which the person is in breach of the person's reporting obligations. (5) For the purposes of subsection (4), a countable period occurs when a person fails to make an initial report under Division 2, or an annual report under section 10, within one month after the day on which the report was due to be made. In such a case the countable period: (a) commences one month after the report was due to be made, and (b) finishes when the person reports the person's relevant personal information to the Commissioner of Police, and (c) does not include any period during which the person's reporting obligations are suspended.
The sole issue raised by the applicant in this matter is the extent of the Tribunal's power under s 16 of the Act. DKP argued that the Tribunal has power to exempt him from the balance of his reporting obligations as a registrable person under the Act. The Children's Guardian's view is that the Act does not give the Tribunal a general power to excuse DKP's reporting obligations, but only allows the Tribunal to suspend those obligations for the period by which they were extended under s 15(3) of the Act.

Jurisdiction

As we have said, DKP was resident in Queensland at the time that he made his application to the Tribunal, and he is resident in Queensland still.
The Australian Constitution ('the Constitution') deals with the Judicature in Chapter III. Section 75, which is in Chapter III, confers original jurisdiction upon the High Court, among other things, in all matters: (iv) between States, or between residents of different States, or between a State and a resident of another State.
In s 71, the Constitution provides for the judicial power of the Commonwealth to be vested in the High Court, in 'such other federal courts as the Parliament creates' and in 'such other courts as it invests with federal jurisdiction'.
The Tribunal is not a Court, and cannot, therefore, be a recipient of federal jurisdiction (see Burns v Corbett [2018] HCA 15 and Attorney-General for NSW v Gatsby [2018] NSWCA 254).
If DKP's application, or his appeal, were properly characterised as a matter between a State and a resident of another State, requiring the exercise of judicial power, then this Tribunal would have no jurisdiction to decide it.
The Act, in s 16(6) provides: The Children's Guardian is to be a party to any proceedings for an order under this section. The Children's Guardian may make submissions in opposition to, or in support of, the making of the order. The Children's Guardian has been joined as a party to this matter under s. 16(6).
The Children's Guardian, prior to being joined as a party under s 16(6) of the Act, had no involvement in the issues concerning DKP's status as a registrable person or his reporting period.
The Children's Guardian has been joined as a party because the Act, in s 16(6), requires it. The Act specifically allows for the Children's Guardian to make submissions in opposition to or in support of the making of an order under s 16(6) of the Act. The Children's Guardian's role is not necessarily to be a contradictor.
The Children's Guardian is appointed under the Children and Young Persons (Care and Protection) Act 1998 (NSW), Chapter 10, Part 1.
The objects of both the legislation providing for the appointment of the Children's Guardian and the legislation under which the Children's Guardian is participating in this matter involve the protection of children.
In the context of the objects of the relevant legislation, it can be readily inferred that the reason the legislature provided for the participation of the Children's Guardian in matters under s 16 of the Child Protection (Offenders Registration) Act 2000 is to enable submissions to be made in the interests of the protection of children in the State of New South Wales ('NSW').
As we have said, the Children's Guardian's role in proceedings under s 16 of the Child Protection (Offenders Registration) Act 2000 will not necessarily be the role of 'contradictor'. The resolution of the issues to be decided in such proceedings will not affect the rights or interests of the Children's Guardian directly, although the Children's Guardian is interested in the outcome as it relates to the protection of children in NSW.
The Act, as we have outlined in some detail in paragraphs 8 to 18 above, for the purpose of child protection, sets up a register to be maintained by the Commissioner of Police, using information which the Act obliges a registrable person to provide to the Commissioner of Police on an on-going basis. In other words, the Act sets up an administrative system for the monitoring of a specified kind of offender for a period of time after such an offender has been sentenced or released from government custody.
DKP's application seeks a decision with respect to an aspect of his obligations under that administrative system; namely, for what length of time those obligations are to be imposed upon him under the Act. DKP therefore seeks from the Tribunal an interpretation of the provisions of the Act in relation to the manner in which the administrative system affects him, and an assessment of whether those obligations can be relaxed, consistent with the provisions of the Act. DKP seeks from the Tribunal an administrative decision. The reporting obligations imposed by the Act on DKP are very similar to the obligations which may be imposed upon an offender by way of parole conditions. It is well established that the parole system is an administrative system (see Crump v New South Wales [2012] HCA 20).
This application does not call for the exercise of judicial power. Consequently, no jurisdictional issue arises under s 74(iv) of the Constitution.
The Children's Guardian referred us to the decision of the High Court in Bell Group NV (in liquidation) v Western Australia (2016) 260 CLR 500 at [75], where the High Court says that it is the settled practice of that Court 'that it does not decide constitutional questions unless necessary for the decision'. It seems to us that this Tribunal should also refrain from embarking upon a further analysis of the limits of its jurisdiction under the Constitution when the issue now before us can be resolved in other ways.
A question was raised earlier in the proceedings as to whether this Appeal Panel had jurisdiction. This question arose because s 16(10) of the Act says: A party to proceedings under this section may appeal to the Supreme Court, on a question of law, from any decision of the Civil and Administrative Tribunal in the proceedings.
The application by DKP falls within the Tribunal's general jurisdiction under s 29(1) of the Civil and Administrative Tribunal Act 2013. That Act provides, in s 29(3) that a 'general decision' under the Act means a decision of the Tribunal in its general jurisdiction. Section 32(1) of that Act confers internal appeal jurisdiction upon the Tribunal with respect to, among other things, general decisions of the Tribunal at first instance.
The Supreme Court and the Tribunal have concurrent jurisdiction over an appeal on a question of law under s 16 of the Child Protection (Offenders Registration) Act 2000. Under s 80(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal's appeal panel may also give a party leave to appeal from a decision on a ground which is not a question of law.
This application raises a question of law, namely the construction of s 16 of the Child Protection (Offenders Registration) Act 2000 and the extent of the Tribunal's power under that section.

The Tribunal's power under s 16 of the Child Protection (Offenders Registration) Act 2000 (NSW)

The Tribunal's only power to change a registrable person's reporting obligations under the Child Protection (Offenders Registration) Act 2000 is provided for in s 16 of that Act.
DKP is not a person who is required to comply with reporting obligations for the remainder of his life, so s 16 is only applicable to him as a registrable person 'whose reporting period has been extended under section 15(3)' (see s 16(1)(b)).
Section 16(3A) provides, as we have said: On the application of a registrable person referred to in subsection (1)(b), the Civil and Administrative Tribunal may make an order suspending the registrable person's reporting obligations for the length of time by which the registrable person's reporting period was extended under section 15(3). The plain words of s16(3A) provide that the Tribunal's power to change the reporting obligation of a person in DKP's position is limited to suspending the reporting obligations for the length of time by which the registrable person's reporting period was extended under section 15(3) of the Act; that is by the length of time for which they were absent from Australia and not subject to any reporting regime.
DKP argued, in effect, that the power conferred upon the Tribunal by s 16 should be read with regard being paid to the heading of s 16, which is 'NCAT may exempt persons from compliance with reporting obligations'.
We reject that argument. A heading to a section of an Act is generally not taken to be part of the Act (see s 35(2) Interpretation Act 1987 (NSW)). DKP's argument is not supported by the text of s 16 of the Child Protection (Offenders Registration) Act 2000.
We determine that the Tribunal does not have power to give DKP an exemption from his reporting obligations as a registrable person beyond the suspension of those obligations for the period of time by which his reporting period has been extended under s 15(3) of the Child Protection (Offenders Registration) Act 2000.
The Tribunal at first instance gave DKP the benefit of the maximum relief from his reporting obligations as the Child Protection (Offenders Registration) Act 2000 allows.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 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 July 2019

Constitution Interpretation Act 1987(NSW)

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