Later, the witness clarified this evidence by saying:
What I meant was in an extraordinary situation where the safety or health of the patient was involved, it may well be that there would not be direct supervision.
18 I note that this requirement of the presence of another person applies to all wardsmen employed by the Area Health Service.
19 The evidence also includes that of the Director, Nursing Administration of the relevant hospital in which K is employed, who is his senior Divisional Manager and has known K for eight years. She deposed that "K has always shown himself to be a person of great honesty, integrity and reliability. He is a valued and respected member of staff and has demonstrated himself to be a person of good character" and also that K "displays initiative, dependability and a good rapport with his colleagues, and all other members of this hospital's staff".
20 In the light of the evidence before the Commission and taking into account the matters referred to in s.9(5) of the Act I have no difficulty in forming the view that K does not pose a risk to the safety of children in the circumstances in which his work is undertaken. There is nothing, indeed, in the evidence that even remotely suggests he would pose a risk to the safety of children in any situation. In coming to that view regarding his work, I have paid particular regard to the policy of the hospital and Area Health Service and the work method adopted thereunder which requires the presence of other responsible persons when any wardsman, including the applicant, works with children. I have also attributed considerable weight to the evidence of the employing authority concerning K's character and performance in his work and the now lengthy period after successful rehabilitation.
21 It is the presence of responsible persons when the applicant carries out his work which raises a question going to the jurisdiction of this Commission to make any order in the proceedings. As I have noted, s.9(3) prevents the Commission from making an order under s.9 unless the person is an employee "liable to be dismissed from that employment under this Act". K, being a prohibited person (s.5) is prevented (s.6(1)) from remaining in child-related employment and the employer is prohibited (s.8(1)) from continuing him in child-related employment. Accordingly, he is liable to be dismissed if the work undertaken by him is child-related employment as defined in s.3.
22 It is clear that K's employment is in wards of a public hospital in which children are patients (see the definition of child-related employment par. (vi)) or is employment involving the direct provision of child health services (see the definition par. (xiv). However, the two questions of jurisdiction raised for consideration concern the words of the preamble in that definition "means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised". "Employment" is defined, relevantly for present purposes, as "performance of work under contract of employment". It follows that the preamble in paragraph (a) of the definition of child-related employment may be read pertinently to this case to mean "any work in public hospital wards in which children are patients that primarily involves direct contact with children where that contact is not directly supervised".
23 If the work in question does not primarily involve direct contact with children, or where it does involve such contact but the contact is directly supervised, it seems the work would not constitute child-related employment and, accordingly, while the person the subject of the serious sex offence would remain a prohibited person as a result of the provisions of s.5, the person would not be barred from the particular employment by s.6. That is, the person would not be an employee liable to be dismissed within the meaning of s.9(3) of the Act and accordingly no order could be made under that section.
24 Thus, the two questions for immediate determination are whether the applicant's employment "primarily involves direct contact with children" and whether, if so, that contact is not directly supervised.
25 The notion of the work "primarily" involving direct contact immediately raises concepts of time but also would, it seems to me, necessarily involve considerations of a qualitative kind. It seems inconceivable that an Act, the obvious purpose of which is to protect children from undesirable contact with relevantly inappropriate persons should operate upon some time analysis of the work involved. Put another way, to find that a wardsman such as K was spending approximately 60 per cent of his time in relation to adult patients and 40 per cent of his time in relation to children would not seem to provide a factual basis for the formation of the view that the Act ought be unconcerned with him because he was not "primarily" involved with children in his work. Mr Bourke of counsel for the Commission for Children and Young People urged the view that this Commission should take a purposive approach to the construction of the Act (s.33 of the Interpretation Act 1987) and in relation to such an example conclude that the Act was intended to apply. In order to achieve that result in conjunction with the phrase "primarily involves" one needs to construe the words in context as having an intention not to describe the major and substantial time or indeed, it seems to me, the major and substantial function, of the employee, but rather to view the phrase as it was intended, namely, to describe the primary or essential requirements of the job.
26 This approach seems to me to conform with the intention of Parliament as evidenced by the particular words in the context of the statute as a whole. Strictly it seems unnecessary to resort to the second reading speech by the Minister when the bill leading to the Act was before the Parliament but such reference gives me comfort for the view which I have formed. The Minister (the Hon. Mrs Lo Po) said in the second reading speech:
The object of the bill is to prohibit persons with convictions for serious sexual offences from working in positions of child-related employment. . . . . All current and prospective employees will be asked to declare whether they have any convictions for a serious sex offence. If they do, they will be prohibited from applying for, or continuing to work in, positions involving direct unsupervised contact with children.
27 It follows from my conclusion that the applicant's employment does primarily involve direct contact with children. It remains now to consider whether or not the "contact is not directly supervised". There is no question that the work is directly supervised when undertaken in company with and under the instruction of medical staff. Were that the position at all times, it would seem that the Act could not have the effect of exposing K to a liability to be dismissed from this employment. The difficulty arises when K undertakes work without nursing or medical staff being present but in the company of a family member. In this respect Mr Bourke submitted that the concept of supervision could not intend to include the presence only of a parent and that, accordingly, the applicant is not directly supervised at all times and thus is within child-related employment as defined. This approach exposes him to liability for dismissal as a result of the Act and thus clears the way for the Commission to make an order on the merits of the case if it is so disposed.
28 During the course of the argument I expressed difficulty with this interpretation of the definition. The matter in relation to which the definition refers to direct supervision is "that contact", which clearly refers back to the direct contact with children. Where there is direct contact with a child in a ward as the result of an instruction given by nursing or medical staff, for example, to transfer a patient from one ward to another, but that contact is undertaken in company with a child's parent, for example, it would seem an absurdity that the view should be taken or intended that the contact "was not directly supervised". The verb "supervised" refers not to the work but "that contact". Another example illustrating the absurdity is the type of work instanced in paragraph (xiii) of the definition of child-related employment being "employment involving the private tuition of children". One can readily envisage that in the normal course of events, particularly where that tuition is given in the home of a child or at the home of the teacher or in some other place, direct supervision would hardly be the norm although the presence of a parent would be a most significant matter.
29 My conclusion is that the work of K is normally supervised in the sense required by the definition but that there remains the extraordinary possibility, however rare, that may cause him to engage in such work without supervision. I am prepared to countenance that possibility as being adequate to justify the exercise of jurisdiction in the applicant's favour, on the basis that he is engaged in child-related employment and thus at risk of dismissal.
30 I take into account the remaining matters required by s.9(5) to be considered. While the offences for which K was committed were extremely serious, they involved persons considerably older than K, he then being of relatively young age. Those offences comprise the sole elements of his criminal record. There was no element of his imposing upon children in any way.
31 I also take account of the lack of opposition on the merits of the Commission for Children and Young People. I regard the position adopted by that Commission as both useful and appropriate.
32 The Commission: