DND v Commissioner of Police, NSW Police Force [2025] NSWCATAD 132

1. The reference to CPORA in the application is a reference to the Child Protection (Offenders Registration) Act 2000 (NSW). The objects of that Act are set out at s 2A include:

(c) to monitor persons who are registrable persons, and

(d) to ensure that registrable persons comply with this Act.

1. The Tribunal, of its own motion, listed the application for an interim hearing to determine whether it had jurisdiction to make any of the orders sought.
2. At the interim hearing, the Applicant appeared in person and made submissions orally in chief and in reply. He also submitted written submissions after the hearing that he had intended to hand up. The Respondent also appeared and provided written submissions, supplemented by oral submissions. The submissions of both parties have been taken into consideration for the purposes of this decision.
3. The Applicant was found guilty and convicted by the Local Court at Manly in June 2016 of an offence under the Crimes Act 1900 (NSW), s 61L, being an indecent assault with an act of indecency. He was released on condition that he be of good behaviour for a period of 18 months pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW), s 9. The offence was committed against a person who was aged 17.
4. Because of the nature of the offence and the fact that it was committed against a person under 18 years of age, it was a registrable offence under Child Protection (Offenders Registration) Act, s 3. Being convicted of a registrable offence, the Applicant met the definition of a registrable person under the Child Protection (Offenders Registration) Act, s 3A and he was automatically placed on the Child Protection Register for a period of eight years.
5. The Applicant would have been removed from the Child Protection Register in June 2024 were it not for the fact that he subsequently spent time in custody for other offences. Arising from the period he spent in custody, and pursuant to Child Protection (Offenders Registration) Act, s 15 his eight-year reporting period will now expire in June 2027.
6. The Tribunal has power to exempt a registrable person from their reporting obligations under the Child Protection (Offenders Registration) Act, s 16, but only in the circumstances set out by that provision. It is not a general or plenary power. I have extracted the entirety of that provision below:

16 NCAT may exempt persons from compliance with reporting obligations

(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)).

(2) If (in the case of a registrable person referred to in subsection (1) (a)) -

(a) a period of 15 years has passed (ignoring any period during which the registrable person was in government custody) since the person was last sentenced or released from government custody in respect of a registrable offence or a corresponding registrable offence, whichever is the later, and

(b) the person did not become the subject of a life-long reporting period under a corresponding Act while in a foreign jurisdiction before becoming the subject of such a period in New South Wales, and

(c) the person is not subject to parole or licence in respect of a registrable offence (whether in New South Wales or a foreign jurisdiction),

the person may apply to the Civil and Administrative Tribunal for an order suspending the person's reporting obligations.

(3) On the application of a registrable person referred to in subsection (2), the Civil and Administrative Tribunal may make an order suspending the registrable person's reporting obligations.

(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 115 of the Children's Guardian Act 2019.

1. It is clear from the text of the provision that the effect of the Child Protection (Offenders Registration) Act, s 16 is that the Tribunal may only make orders in respect of registrable persons who are subject to reporting obligations for life or where their reporting obligations have been extended under s 15(3). An extension under s 15(3) arises where the Registrable person has been outside of New South Wales.
2. The Tribunal is a creature of statute and, likewise, its jurisdiction arises principally from enabling legislation. Such enabling legislation includes some provisions of the Act that constitutes the Tribunal, Civil and Administrative Tribunal Act 2013 (NSW). The ancillary jurisdiction of the Tribunal available under Civil and Administrative Tribunal, s 29 which enables the Tribunal, among other things, to consider whether it has jurisdiction to determine an application brought before it. Moreover, as here, even where legislation provides jurisdiction for particular matters, the source of the jurisdiction may be prescribed. This was considered in White v Sutherland Shire Council [2019] NSWCATAD 100 at [8]:

"The CAT Act sets out the Tribunal's jurisdiction. One of those jurisdictions is the "administrative review jurisdiction": s 29(2)(b) CAT Act. The Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act: s 30 CAT Act, and s 9 ADR Act. Section 30 of the CAT Act provides that, with respect to the Tribunal's administrative review jurisdiction, in effect that the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. While there are many pieces of legislation which give jurisdiction to the Tribunal, however, they may not give jurisdiction for every decision made under each piece of legislation." [emphasis in original]

1. Having regard to the above and the submissions of both parties, I can see no basis on which the jurisdiction of the Tribunal is enlivened to determine the application or grant the relief sought.
2. The Tribunal may dismiss proceedings at any stage where it considers the proceedings are, among other matters, misconceived or lacking in substance; Civil and Administrative Tribunal Act, s 55(1)(b). In Fox v Commissioner of Police, NSW [2016] NSWCATAD 77 at [26], the Tribunal, considering the meaning of the words of s 55(1)(b), observed that:

"...The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39]."

1. Where an application is made for which the jurisdiction of the Tribunal is found to be wanting, such an application may be considered as being misconceived or otherwise lacking in substance.
2. I have determined that is the case here, accordingly I dismiss the proceedings pursuant to the Civil and Administrative Tribunal Act, s 55(1)(b).
3. In circumstances where I have determined that the Tribunal has no jurisdiction, I cannot consider the nature or terms of the relief, final or interim. However, I am satisfied that it is necessary to assign the Applicant a pseudonym to protect the identity of the Applicant's children - given they are referred to in his interim relief. Accordingly, I have determined that the disclosure of his name should be restricted to the parties: Civil and Administrative Tribunal Act, s 64(1)(a).
4. I make the following orders:

(1) The proceedings are dismissed pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b).

(2) The disclosure of the Applicant's name is restricted to the parties pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a).

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.

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.