HREA v Commission for Children and Young People

SOLICITOR Crown Solicitor's Office, SYDNEY.

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

THE HEALTH AND RESEARCH EMPLOYEES' ASSOCIATION OF NEW SOUTH WALES AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE.

Application pursuant to s.9 of the Child Protection (Prohibited Employment) Act 1998. DECISION

1 The Health and Research Employees' Association of New South Wales on behalf of its member, K, has sought a declaration that the Child Protection (Prohibited Employment) Act 1998 ('the Act') does not apply to K in respect of offences committed by him on 6 June 1968 in relation to which he pleaded guilty and was sentenced to concurrent terms of imprisonment. The offences were rape (two counts) and Aide and Abet rape (three counts). 2 The NSW Commission for Children and Young People appears, pursuant to s.9(7) of the Act, as respondent to the proceedings and in relation to the matter of the merits of the application has assisted the Commission by providing evidentiary material relating to the offences and the victims thereof and has adopted the position that it does not oppose the order sought by the applicant on its merits. It has however raised issues of jurisdiction which, in the light of all of the evidence, it submits may be resolved in the applicant's favour if the Commission takes a certain view of the statute. I shall return to that matter. 3 The Act provides in s.5 for a class of person known as a prohibited person, meaning one convicted of a serious sex offence, a term which is itself defined and embraces the offences committed by K. 4 Section 6 makes it an offence for a prohibited person to apply for, or undertake, or remain, in child-related employment. 5 Section 7 then imposes an obligation on an employer who, at the commencement of the subsection, employs a person in child-related employment to, within six months, require the employee to disclose whether or not the employee is a prohibited person unless the person ceases, during that six month period, to be engaged in that employment. An employee receiving that notice is obliged to disclose to the employer whether or not he or she is a prohibited person. 6 Section 7(1) also obliges an employer not to commence employing any other person in child-related employment without first requiring the person to disclose whether or not that other person is a prohibited person. 7 Section 8 makes it an offence for an employer to commence employing, or continue to employ, in child-related employment a person that the employer knows is a prohibited person. 8 By s.9 the Industrial Relations Commission and the Administrative Decisions Tribunal, on the application of a prohibited person, may make an order declaring that this Act is not to apply to the person in respect of a specified offence. 9 This Commission may not make an order under s.9 unless the person is an employee within the meaning of the Industrial Relations Act 1996 who either:

(a) is liable to be dismissed from that employment or; (b) was dismissed from that employment. 10 By s.9(4) an order is not to be made unless it is considered that "the person the subject of the proposed order does not pose a risk to the safety of children". 11 The remaining provisions within s.9 of present relevance are as follows: 9(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,

(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.

(9) Orders under this section may be made subject to conditions. 12 By s.3, Definitions, "child-related employment" is defined as: (a) . . . that primarily involves direct contact with children where that contact is not directly supervised: (i) employment involving the provision of child protection services,

(ii) employment in pre-schools, kindergartens and child care centres (including residential child care centres),

(iii) employment in schools or other educational institutions (not being universities),

(iv) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987),

(vi) employment in wards of public or private hospitals in which children are patients,

(vii) employment in clubs, associations or movements (including of a cultural, recreational or sporting nature) having a significant child membership or involvement,

(ix) employment in entertainment venues where the clientele is primarily children,

(x) employment as a babysitter or childminder that is arranged by a commercial agency,

(xi) employment involving fostering or other child care,

(xii) employment involving regular provision of taxi services for the transport of children with a disability.

(xiii) employment involving the private tuition of children,

(xiv) employment involving the direct provision of child health services,

(xv) employment involving the provision of counselling or other support services for children,

(xvii) employment at overnight camps for children, and

(b) includes any other employment of a kind prescribed by the regulations, but does not include any employment of a kind excluded by the regulations. 13 K was born in 1950 and at the date of the relevant offences was 17 years of age. The two female victims were in the range of 30 to 45 years of age. The offences involved the applicant in concert with two other male persons invading a flat occupied by one female who was then entertaining two friends, a female and a male, and subjecting the male to serious physical assault and the two female persons to repeated violent physical and sexual assaults. The conduct is obviously at the upper end of seriousness. 14 The applicant pleaded guilty to the offences, unlike the other two male offenders who unsuccessfully pleaded not guilty. The applicant has incurred no further convictions. He is now married with a teenage child and attests to being a person of Christian beliefs and values who does not smoke, drink, gamble or partake in prohibited drugs. He has been called for jury service. 15 He has been in continuous employment for 17 years with an Area Health Service in the position of a wardsman, which involves assisting medical staff in lifting and turning patients and the portering of patients, including children, from one ward to another. He has deposed that: "The assistance provided to patients and/or portering is always undertaken on instruction from nursing or medical staff and is always carried out in the company of such medical staff and/or the patient's parents or other family members;

My employment does not at anytime require me to work with or near children without supervision;

In the event of employment being terminated with the . . . . Area Health Service this would have a devastating affect (sic) on my family and myself;

My limited education, alternate work experience and age would make it extremely difficult for me to gain employment other than in the public hospital system;

I believe that I have shown through my employment history and within the community that I do not pose a risk to children and therefore should not be subjected to the application of this legislation." 16 The evidence in the applicant's case includes that of the Manager, Employee Relations of the Area Health Service, which has confirmed the way in which his work does not (usually) require him to work with or near children alone and that the Area Health Service is satisfied that he poses no risk to patients or staff. That witness deposed to K being "a valued employee and the Area supports his application for an order under s.9 of the Child Protection (Prohibited Employment) Act 1998". 17 The evidence regarding his contact with children was: Q. Point 4 of your affidavit states that his duties incorporate lifting and portering of patients generally under the direction of nursing staff and or medical staff. What happens in the case of children? A. In the case of children, under all circumstances except an absolute emergency or extraordinary situation, there would be supervision by a nurse and/or parents.

Q. And/or parents. How frequently would such an emergency circumstance arise, to the best of your knowledge, that may require the applicant to porter a child, shall we say, without any supervision being present? A. I would say it was highly unlikely. It would be an emergency situation which would be of the nature of the hospital catching on fire or something along those lines. It would be a genuinely extraordinary circumstance.

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:

1. Declares that the Child Protection (Prohibited Employment) Act 1998 is not to apply to K in respect of the offence of rape and aid and abet, rape of which he was convicted.

2. Orders the Commissioner of Police be notified of the terms of the Declaration in paragraph 1.

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