'L' and The Commission for Children and Young People and anor [2008] NSWIRComm 195

Child Protection (Offenders Registration) 2000 LEGISLATION CITED: Commission for Children and Young People Act 1998 s 33I(1) s 31 s 32 s 33B s 33C s 33E s 33J Crimes (Sentencing Procedure) Act 1999 s 10A Teaching Service Act 1980 s 93T

Commission for Children and Young People v "V" (2002) 127 IR 129 CASES CITED: Longman v The Queen (1989) 168 CLR 79 "R" v New South Wales Commission for Children and Young People [2002] NSWIRComm 101

HEARING DATES: 9 October 2008, 10 October 2008

APPLICANT: Mr Neale Dawson, Solicitor SOLICITORS: Federation Law

FIRST RESPONDENT: Commission for Children & Young People LEGAL REPRESENTATIVES: Mr G De Courcey, Solicitor SOLICITORS: Ms Vaisman Crown Solicitor's Office

SECOND RESPONDENT: Director-General of Education & Training Mr A Britt of counsel SOLICITORS: Mr J Murn Employee Performance & Conduct Unit Department of Education & Training

Matter No IRC 1166 of 2008 "L" AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE Application under s 331 of the Child Protection (Prohibited Employment) Act 1998 JUDGMENT [2008] NSWIRComm 195

1 "L" has followed his profession as a primary school teacher from 1972 until April 2008. During that period of more than 35 years he obtained a number of promotions and by April 2008, held the position of Assistant Principal at a suburban public school where he also taught children from Kindergarten to Year 6. 2 In April 2007, "L" was charged in relation to a number of counts of assault with act of indecency pursuant to the provisions of the Crimes Act 1900. In February 2008 he entered a plea of guilty to a number of counts and on 18 April 2008 was dealt with in the District Court when in each matter he was convicted of the offence but pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, no additional penalty was imposed. Those convictions had immediate consequences for his continued employment as a teacher and on conviction he was required to register as a sex offender pursuant to the provisions of the Child Protection (Offenders Registration) Act 2000 and pursuant to the provisions of s 33C of the Commission for Children and Young People Act 1998 was not to apply for, attempt to obtain, undertake or remain in child related employment. On 28 April 2008, in accordance with s 93T of the Teaching Service Act 1980, "L"s employment as a teacher was terminated. 3 In July 2008, pursuant to the provisions of s 33I of the Commission for Children and Young People Act, "L" applied for a declaration that Pt 7, Div 2 the Act was not to apply to him in respect of the offences of which he was convicted in the District Court on 18 April 2008. 4 The statutory regime dealing with child-related employment has been reviewed and construed in a number of cases but it is sufficient for immediate purposes to note that under s 33I(1) on the application of a prohibited person, the Industrial Relations Commission may make an order declaring that the provisions of Pt 7, Div 2 of the Act are not to apply to the person in respect of a specified offence. Part 7 of the Act deals with child-related employment and in s 31 the objective of the Part is stated to be to protect children by prohibiting certain persons from being involved in child related employment and by means of background checking for child-related employment. By s 32, the safety and welfare of children and, in particular, protecting them from child abuse, is stated to be the paramount consideration in the operation of Pt 7. Employment in schools falls within the definition of "child-related employment". Section 33E provides that an employer must not commence employing, or continue to employ, in child-related employment, a person that the employer knows is a prohibited person. 5 Section 33J of the Act deals with matters to be considered in determining review applications and provides as follows: 33J Matters to be considered in determining review applications (1) The Commission or a relevant tribunal is not to make an order on a review application unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children. (2) In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (3) In deciding whether or not to make an order in relation to a person, the Commission or 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 period of time since those offences were committed;, (c) the age of the person at the time those offences were committed; (d) the age of each victim of the offences at the time they were committed; (e) the difference in age between the prohibited person and each such victim; (f) whether the person knew, or could reasonably have known, that the victim was a child; (g) the prohibited person's present age; (h) the seriousness of the prohibited person's total criminal record; (i) such other matters as the Commission or tribunal considers relevant. 6 At the hearing of the application, the Commission for Children and Young People ("CCYP") and the Director-General of Education and Training ("the Director-General") entered appearances. Both the CCYP and the Director-General submitted that they neither supported nor opposed the application but wished to place all relevant material before the Commission for the purposes of the review. To this end, the CCYP tendered two volumes of documents containing copies of charge sheets, fact sheets and statements taken from a number of people during the course of the police investigation including the four sisters indecently assaulted by "L". In addition, many documents were produced from "L"s personnel file held by the Department of Education and Training. Those documents not only dealt with the course of the Department's investigation and monitoring of the criminal charges but also contained details of "L"s employment history, school placements and the promotions he had obtained. The Director-General tendered documents from the District Court trial being copies of a series of letters dated between May 2005 and January 2007 passing between "L" and his sisters. In the first of these letters one of "L"s sisters who had been sexually abused by him wrote to describe the effects his conduct had on her life on an ongoing basis. Also included in this material was the transcript of "L"s evidence, both examination in chief and cross-examination, given in the District Court. The CCYP also tendered a report on "L" prepared by Dr Stephen Allnutt, Forensic Psychiatrist, together with the letter of instructions setting out the background to the matter, the nature of the orders sought by "L" in this Commission, the matters that the Commission is required to considered under the Act and listed a number of issues that should be addressed in his report. Dr Allnutt was not required for cross-examination. 7 For the applicant, affidavit evidence was provided setting out the background to his termination after his conviction in the District Court, his employment history and stating that he was not involved in any community organisation such as sporting, recreational or community groups where he has been or is in contact with children or young people. In his affidavit he swore that there had been no complaints or disciplinary proceedings against him involving children or young people in relation to actions at his workplaces or anywhere else. The applicant annexed to his affidavit a copy of the sentence judgment of Finnane DCJ. Although the applicant was not required for cross-examination, he gave sworn evidence that the evidence he gave in the District Court in examination in chief and in cross-examination was truthful. The applicant also tendered the transcript of character evidence before the District Court given by three friends and colleagues. That transcript showed that the witnesses were ultimately aware of the details of the allegations and each of them was cross-examined. They were not required for cross-examination in the proceedings before this Commission. 8 At the hearing, for the purposes of the provisions of s 33J(3), the following matters were agreed or were not in contest (using the same paragraph identifiers as appears in the Section): (a) The seriousness of the offences with respect to which the person is a prohibited person - these were serious offences; (b) the period of time since those offences were committed - offences committed around December 1966 or January 1967, approximately 41 years ago; (c) the age of the person at the time those offences were committed - 15.5 years; (d) the age of each victim of the offences at the time they were committed - approximately 3-4; 5-6; 7-8; 10-11 years of age; (e) the difference in age between the prohibited person and each such victim - approximately 11-12; 9-10; 7-8; 4-5; years; (f) whether the person knew, or could easily have known, that the victim was a child - the person knew the ages of his four sisters; (g) the prohibited person's present age - 57 years; (h) the seriousness of the prohibited person's total criminal record - no other offences. 9 The circumstances of these offences were dealt with in detail by Finnane DCJ in the course of passing sentence. "L" came from a large family and the family moved frequently because of his father's employment. "L" was the eldest brother of the four girls indecently assaulted and long before any criminal proceedings had been instituted again him, he had told them in a series of letters, that he was guilty of assault on them of an indecent nature and that he was sorry and ashamed. While he had openly accepted his guilt in these letters, when complaints were finally raised with the police it became clear that there were differences between "L" and his sisters as to the nature of the acts of indecency committed upon them and his age at the time of the indecent acts. "L"s position was that he had only recently returned from a period of more than two years in a seminary and was approximately 15 or 15 and a half years old at the time of the incidents. His sisters were of the view that he was older, looked like a man and that he was 18 years old or older. Each of the sisters gave evidence of the nature of the offences and claimed that "L" had placed them naked and face down on a bed in the family home and then lay on top of them with his erect penis between the cheeks of their rectum, rubbing it up and down. "L" denied committing these acts and claimed he rubbed his naked body, including his penis, on the naked sides of their bodies. In view of the lapse in time since the offences and the vague memories of the witnesses as to certain places and times where the family was living, his Honour had regard to the direction in Longman v The Queen (1989) 168 CLR 79 and the provisions of s 294 of Criminal Procedure Act to the effect that, where the evidence of the complainants could not be adequately tested because of the passage of time, it would be unsafe to convict on the uncorroborated evidence of the complainants alone unless satisfied of its truth and accuracy after scrutinising it with great care and after taking the warning into account. Ultimately his Honour said that, unless the Crown could persuade him beyond reasonable doubt, that these events occurred in the manner claimed by the sisters, he could not make such a finding. He came to the conclusion that he could not be satisfied beyond reasonable doubt that the assaults occurred at the time and in the manner deposed by the complainants. The offender "L" had admitted to indecently assaulting each of the complaints, had given a version of when this occurred and in his Honour's opinion the Crown did not negative beyond reasonable doubt that he committed the offences when he was 15 and a half years old. His Honour therefore accepted that "L" committed the offences of indecent assault against each of his sisters and that at the time he was approximately 15 and a half years' old. 10 His Honour attached significance to the admissions made by "L" in correspondence with his sisters and that those admissions were consistent with his evidence and placed his age at approximately 15 and a half, rather than 18 or older. he correspondence had been commenced when one of his sisters apparently wrote to him as a result of a suggestion by a therapist that she do so. His Honour accepted that the letter was not designed to obtain admissions for the furtherance of police investigations but rather was sent in a desire to confront her brother with what he had done and to have him admit those acts so that she could get some "closure". In his reply to the first letter, "L" admitted abusing her and explained his actions as that of a young boy who had been in a seminary for nearly three years and who had not seen any girls for two years and then stated: In a weird way I was finding out about girls and in the process I abused my sisters who I love dearly. It all happened over a two-three week period and I abused you and K at the same time. I don't know why it happened or why it stopped. I have been trying to deal with it for 40 years ... . 11 His Honour noted that because these events surfaced many years later, "L" had no way of calling anyone to establish all his movements when he came home from boarding school at the age of 18, nevertheless he had been prepared to admit indecent assaults on each of his sisters from the time it was raised with him but he did not accept that it happened in the way they claimed. He had accepted that what he had done was disgraceful and that it had very severe effects on his sisters. 12 In parts of the correspondence that flowed between "L" and his sisters, concerns were raised with him that he may have performed similar acts with other children but these were strongly denied by "L". After noting these fears as expressed in the letters, his Honour stated that there was no reason to suppose that "L" had ever behaved in an inappropriate way with any other child since these events occurred when he was 15 and half years old. His Honour went on to state: There is evidence from teachers with whom he has worked that he has always behaved honourably and admirably during his quite lengthy career as a teacher. His qualities were given recognition by his employer's promotion of him to positions of importance. He has given evidence that he has not done anything improper towards children under his care either as a parent or as a teacher. I accept what he says. ... He has had marital, gambling and drinking problems in the past but he has sought counselling. I regard him as a man of good character. 13 In dealing with the issue of an appropriate sentence, his Honour expressed the view that in this case sentencing posed "considerable difficulties". The offences occurred more than 40 years ago and over a period when he was not 16 years old. His Honour stated that he must attempt to sentence in accordance with the standards at the time of the offence, noting that if a prosecution had been commenced against "L" as a boy under 16 years of age it certainly would have been launched before a Children's Court. For the purposes of the proceedings before this Commission the following remarks of his Honour are of significance: [67] As I have earlier said in these reasons, the assaults committed by the offender were indecent and they caused great distress and suffering to the victims who were so young at the time. However, the sentence I impose must take into account the offender's youth at the time, his genuine contrition, his position of good character at all times since these offences were committed and the fact that he has served the community well and for many years as a school teacher. [68] In my view, having regard to the penalties that were likely to have been imposed in the 1970s, it is still appropriate to impose a penalty of some kind, but not one that will see him imprisoned, put on a bond or fined. [69] It is also not appropriate, in my opinion, to find the offences proved and then to dismiss them pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1990 because acts of indecency committed against four separate victims, even though committed by a 15 year old boy, are serious offences and deserve to have some penalty imposed.

[70] In my opinion, the correct penalty in the circumstances is that I convict the offender of each offence, but pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, I impose no other penalty. In itself this is a penalty of some significance because such a sentence is a conviction and this will lead to consequences for the offender which he would not have if I were to dismiss the matters pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. Amongst other things, he will have to register as a sex offender pursuant to the provisions of the Child Protection (Offenders Registration) Act 2000. I would accept the submission of the offender's counsel that his obligation will then be to report annually for 15 years. The legislation imposes other obligations on those who are required to register. [71] The Commission for Children and Young People Act 1998 in s 33B prohibits registered offenders from being employed in jobs where children are present. Applications for review of this prohibition are also provided for in sub-division 2 of Division 2 of this Act. In the short term, at least it would appear likely that the offender would not be able to pursue employment as a classroom teacher. [72] These are in one sense extra-curial punishments which flow from a conviction. They are severe punishments in themselves and there is no need, in my opinion, for me to impose any penalty additional to that of the conviction. 14 The letters passing between his sisters and "L" firstly demonstrates their hurt and anger at this gross breach of trust and secondly, speak of the long term effects these events have had on their lives. The replies by "L" are, nevertheless, open and frank in their admission of guilt and he apologises for ruining their lives. In those letters, "L" spoke about feeling sick and ashamed after he received the first letter although stating that it was a relief in a way because for over 30 years, he had been expecting something to happen. He said that to have his sister confirm how his acts affected her and her family had "plummeted me to the depths of despair. I am truly devastated and have barely stopped crying. To use your words - it is time for me to own what I did". In that same letter he spoke of his sister being a beautiful little girl from whom he took away her future because of his actions and then said: You can have no idea of the depths of my regret and I will do whatever you want to try to help you. If this causes my marriage to fall or my family (mum, dad) to reject me, then in my heart, I know I deserve it. I would still like to talk to you so that I can tell you how I feel and tell you personally you did nothing wrong and I abused your trust. 15 In his second letter, "L" spoke of spending 40 years "lying to myself about my actions" and that he was writing everything down and sending it to his sister so that he could not "escape responsibility for (his) actions". He said he had struggled to find the truth and that he could clearly recall, with shame and alarm, his actions towards her. He said that he knew that she had cause to doubt anything he said or anything he did, but stated that he had never done anything remotely similar to what had happened to his sister. In a further letter he said that for years he had avoided family gatherings, only going to important functions and he now knew that they all remembered his "sick" behaviour. He was saddened by the thought of how every smile, kiss or hug must have repulsed and angered all of them. He spoke of spoiling "what could have been beautiful lives". In a further letter, "L" said that he would never "deny that I abused my sisters" and that he had lived with that for some 40 years. He had spoken to two policewomen and told them he would make a statement or anything they asked. He spoke to them on the telephone and told them the abuse occurred. He did not know what his sisters had told the police but he did tell the police that his sisters were children and he would not deny anything that happened. He stated: I am resigned to whatever happens to me, I deserve anything that you do or say to me. At present I am not emotionally stable but I trust that I will learn to cope.

He said that he had never acted this way at anytime during the last 40 years and he was not a person who preyed on children. He was proud of his career and how he had helped thousands of children. He continued: If dying would help you all or help any child I have taught I would die immediately. I dream of my life ending and this helping you. I know this is just me dreaming so don't read into this that I wish to die, I don't. But I do want you all to be able to move on. How? I have no answers. Maybe if all four of you meet me and face your hatred and loathing of me it will help but ultimately only you have control over your life. Finally, no matter what you all do or say I will never recover or be whole as a person. My shame and loathing of myself is complete. I am totally saddened by the loss of my sisters because I love you all and I constantly dream of a life that was different. I will not contact you again as I cannot adequately control my grief. 16 In another letter "L" stated that, since he had received the first letter some 12 months ago, he had been as open and honest as he knew how and to the best of his memory, he had not denied or lied. He described what he had done to his sisters but stated that he did not have sex or penetrate them in any way. He said he was not trying to minimise what he did and he knew "how loathsome it all is". He said that he did not do this when he was 18, 19 or 20. 17 In the District Court, "L" gave evidence of starting school in Year 8 at Christian Brothers in the country and then attending a monastery that operated a self-sufficient farm. His father had attended the monastery as a young man and had almost become a priest before he married and had 12 children. He said that every night they prayed that they would become priests and nuns and in Year 8 he was sent to the monastery as a novitiate. He stayed at the monastery doing Year 7, 8 and part of Year 9, starting as a 12 nearly 13 year old. "L" then explained the timeframe during which the matters occurred and what he was doing otherwise. 18 During the course of his evidence, "L" spoke in some detail of the indecent acts he had performed upon his sisters. He spoke of two of his sisters not wanting to participate and resisting and how he had used physical force to restrain them from moving away. On those occasions his sisters had struggled with him. His memory was that these events had occurred over a period of two to three weeks and he did not know how it had started or why it had happened and he did not know why it ended but that just happened. He thought the fact that his two sisters struggled the second time was a warning to him. He could not find a reason for what he did and he did not want to make excuses but he had not seen a girl in a couple of years and he did not have a girlfriend and he found his sisters excited him. He did not know how to relate to girls in the street now that he was back in town. His mother had told him not to speak to strange girls and he did not know how to relate to women in any shape or form. Apart from his sisters who visited him at the monastery he had not seen a girl for two and a half years and for whatever reason, he decided to abuse his sisters. "L" spoke of recalling these events in later life at the oddest moments and how he particularly remembered what he did to two of his sisters and that he would get a heart flutter. He realised he was a trained school teacher who had been through all the pupil welfare Acts and he could never forget or satisfactorily explain his actions to himself. During this evidence he reiterated that he would never have denied the charges and all through the correspondence with his sisters he said that was the course he would take. He confirmed in his evidence that, since the actions he had taken with his sisters, he had not acted in this way with other children. Eventually, in the hardest day of his life, he told his father and mother about these actions because he did not want them to hear about it any other way and he thought he owed it to them to tell them that he had abused his four sisters. In the course of this evidence, he mentioned he was 57 years old and he planned to retire as a teacher at the age of 60 because that was when he would achieve his maximum superannuation payment. "L" was cross-examined as to the detail of his indecent assaults and accepted that these actions had taken place. 19 In the District Court, character evidence was given on behalf of "L" by three teachers having long service and a long association with him. An assistant principal of a primary school had spent 33 years at his school and had met "L" in approximately mid-1970. They commenced college studies together, shared a room at a guesthouse and they had formed a very close friendship. They had remained in contact over the years and he regarded them as being good friends. They had worked together at a primary school in the early 1980s for a period of six or seven years and over that time he had been able to observe "L" interacting with children. He had seen "L" in direct contact with children and had no reason "whatsoever" for concern about "L"s conduct towards children. He had seen no evidence of conduct of the nature involved in the charges to which "L" had pleaded guilty. They had been in social contact for a number of years and "L" had, on several occasions, looked after his own daughter when she was approximately three or four years old. He would have no reservations in placing young people in the care of "L". He was regarded as a very fine and well-liked teacher and his colleagues had a high regard for him and his professionalism and he expressed hope that "L" would have a future within the Department of Education as a teacher because professionally he had so much to offer. He regarded "L" as being totally trustworthy and had the highest regard for his honesty. He expressed the view that "L" was not coping very well with these matters and they appeared to have badly affected him and had taken "its toll on him" as well as his wife and family. 20 The second character witness was a primary school principal who had known "L" for "quite some time" - they and had worked together and socialised on weekends, especially after 1993 when he became principal of a school in which "L" was a member of the staff. At various times he was "L"s immediate supervisor and then "L" was promoted to executive teacher level and later promoted to assistant principal and he was "L"s immediate supervisor at that point. The school at which they worked together was co-educational for children aged between five and twelve years of age. Over the years he had observed "L" working closely with a large number of children but not once did he have any concern about the nature of "L"s contact with children at the school. "L" was very approachable, especially for the students and was held in high regard by the children and their parents. He had no cause to question "L"s honesty. Approximately midway through the previous year, "L" had explained the charges to him in a very forthright manner. "L" could have avoided the detail but he was open and honest and very frank about the situation in which he found himself. In his view, "L" had been "quite rocked" by the sequence of events and he was not the usual effervescent and positive minded person he had been previously; "L" had expressed to him a great deal of hurt and sorrow that he had hurt people around him and believed that "L" was deeply sorry for hurting others in the way described in the charges. He had expressed remorse for the amount of hurt he had caused his family and the people around him and expressed a great deal of sorrow for that amount of hurt. He said that he had deeply regretted his actions. 21 The third character witness was a female teacher who had commenced as a primary school teacher in 1988. At that time, "L" was her supervisor and she remained at the same school thereafter. During that period she had been in a position to observe "L" working in a classroom situation with children and she had taught beside him on a number of occasions but did not notice any untoward behaviour and observed nothing that gave her concern about "L"s conduct towards children. She had seen "L" involved in extra- curricula activities such as camps and excursions and on those occasions had seen nothing that gave her cause for concern about his conduct with the children. She found "L" to be a very caring person who was generous with his time, was an excellent supervisor and a "lovely man" who was held in high regard by all staff members. She regarded him as an "all round good bloke". She believed he had made a contribution to education and that he still had a contribution to make. He had an exemplary record within the Department of Education and she hated to think that the Department would lose somebody of his calibre, skills and knowledge. He had recently spoken to her about the allegations and became very emotional when talking about them and obviously very upset about the hurt he had caused to his sisters and to the rest of his family. They had a discussion about the differences between his recollection and that of his sisters and the timeframe in which these matters occurred. In cross-examination, she accepted that she had no social contact with "L" but had knowledge of him through working together at the same school. When he spoke to her about the charges and going to court to give evidence on his behalf, he told her that she did not have to do so if she felt she could not but she told him she was only too pleased to speak on his behalf. 22 Dr Stephen Allnutt had been approached in August 2008 on behalf of the CCYP and was requested to conduct an assessment and provide a report on the risk that the applicant posed to the safety of children. Dr Allnutt was advised of the legislative background and the statutory context in which risk was to be considered and he was provided with a lengthy letter of instructions as well as a summary history of the events and two volumes of documents that appear to be similar or the same as the documents tendered in the proceedings in this Commission. In his report, provided in mid-September 2008, Dr Allnutt acknowledged that he had the opportunity to review a number of documents namely: the application made by "L" to the Commission; "L"s affidavit in support of his application; the judgment in the proceedings in the District Court; "L"s criminal history; material provided by the Attorney General's Department; and, materials provided by the Department of Education and Training. 23 In relation to clinical issues, Dr Allnutt noted that "L" denied any obsessional thoughts or compulsive behaviours, denied using drugs or alcohol, stated that he had not recently been diagnosed with any new medical problems and had said that the most significant stressors to have been the loss of his job, the upcoming hearing and increased tension in his relationship with his wife. 24 In dealing with "L"s psychosexual history, Dr Allnutt noted that he had never been exposed to sexual education and his first sexual experience had been with his sisters and this was non-consensual. His first consensual experience with sex had been six months after the offences and his first episode of intercourse occurred at the age of 22 with the woman he ultimately married. He had numerous sexual encounters at Teachers' College and overall had four sexual partners, all female and no male, and identified as having a male sexual identity. He had never been exposed to child pornography and had never been on the internet looking for child pornography nor did he have sexual fantasies about children or teenagers. There were no complaints at school, charges or convictions of a sexual nature until now. He denied recurrent intense sexual behaviours, fantasies or urges involving voyeurism, exhibitionism, frotteurism, sadism or any other paraphiliac thoughts. He found his sex life with his wife satisfying. 25 Dr Allnutt then dealt with "L"s account of the offences and reviewed the documentation, including the statements made by the sisters and their belief of what occurred and how Finnane DCJ had resolved those differences in sentencing "L". Having set out that material, Dr Allnutt then dealt with the mental status examination of "L" and stated as follows: The applicant presented as quiet, co-operative and well groomed. His speech was clear and coherent. He maintained good eye contact. He did not manifest behaviours suggestive of either side effect to psychiatric medication or neurological illness. He spoke in a clear and coherent manner. He endorsed a euthymic mood. There were no neurovegetative features of depression, mania or hypomania. There was no evidence of psychosis. He was cognitively intact. His capacity for insight and judgment were adequate.

Dr Allnutt then expressed his opinion in relation to psychiatric illness stating that, at the time he saw "L", he did not manifest active symptoms of a major mental illness, either a psychotic or anxiety disorder. There was no evidence of a cognitive impairment and there was no evidence consistent with a substance abuse or dependence disorder. Dr Allnutt then stated: He derives from a supportive and religious family, however, it appears in my view I believe that he would be regarded as having a relatively difficult upbringing, being sent to a seminary at a young and vulnerable age with limited contact with his family during that period of time. Nonetheless, he had developed to the extent that he has been capable of pursuing gainful employment and committed interpersonal relationships and I would not diagnose him with a personality disorder based on the information provided. He does not manifest any major medical problems at the time that I saw him although I did not formally physically examine him. The most significant stressors he is exposed to at this stage are the conviction, loss of employment, interfamilial tension and an upcoming Tribunal hearing. His functioning, in my view, is adequate. 26 In the last part of his report, having regard to the legislative framework in which that question arose, Dr Allnutt dealt with the risk that "L" posed to children. Because of the critical importance of this issue to the application before the Commission, this part of the report is set out in full, as follows: Re Risk In approaching this risk assessment I have chosen to adopt both a clinical and actuarial approach. In providing an opinion of risk of recidivism, it is important for the Court to be aware that the quality of expert opinion in this regard is limited as the scientific foundation has limitations. Any opinion on risk of recidivism is more professional than scientific. Clinical Assessment Based on the information provided, the Applicant does not manifest symptoms consistent with a paraphilic disorder or significant sexual deviation. The offence occurred at age 15 and a half during his adolescence. He had limited experience or exposure to sexual matters. The victims were all pre-pubescent and thus his behaviour would be considered as paedophilic behaviour. In the absence of further evidence of recurrent intense fantasies, urges or behaviours of sexual activity involving prepubescent children and having regard to his age at the time of the offence, I would not now diagnose him with paedophilia. He has a history of a prior depressive episode and is currently manifesting symptoms consistent with depression; however, it does not appear that depression has played a part in his prior offending behaviour. The offences occurred at a significantly long period in the past approximately 40 years ago at a time of sexual immaturity. He does not manifest a significant personality disorder. There is no history of a substance abuse or dependency disorder. There is no evidence of significant rule violation. He manifests capacity for sexual and self regulation. He has no prior offending history and there have been no prior complaints of a sexual nature against him. It appears that, based on what the Court has accepted, he does not engage in significant minimisation or denial of offences. He does not manifest evidence that he continues to hold or maintain attitudes that condone sexual offending. He manifests capacity to develop realistic plans. He has capacity to pursue stable interpersonal and age appropriate relationships. He has a capacity to pursue stage and long term employment. He is currently seeing a psychologist. Actuarial Assessment Utilising an actuarial tool, I am guided by the Static 99 which is an instrument designed for the prediction of sexual recidivism in sex offenders. It was developed in Canada and the United Kingdom. It produces estimates of future risk based on the number of risk factors present in any one individual. The probability estimates provided by the Static 99 are reconviction rates. Any recidivism estimates provided by the Static 99 are group estimates and cannot be applied to the individual; such estimates can only act as a guide. Most particularly, these group estimates were derived from sexual offender follow up in Canada and the United Kingdom and therefore are more applicable to that population than an Australian population. Official recidivism rates, particularly reconviction rates probably vary from jurisdiction to jurisdiction and can be influenced by a number of factors including the capacity of the jurisdiction's ability to detect sexual offending, report accurately on the rates of sexual offending. It is also influenced by the legal process that operations of that jurisdiction that result in conviction. It would be appropriate for me to note that there is current argument in the empirical literature about the accuracy of actuarial instruments and concern about the use of actuarial instruments. There is also evidence that supports the view that these instruments, while acknowledging their limitation, have greater accuracy in correctly predicting recidivism in the longer term than clinical assessment but few studies that have compared the two methods in sexual offender groups. Overall, the Static 99 as an actuarial instrument can act as a guide but should be cautiously and judiciously applied to the individual. According to the Static 99, he would score 0 and as such he would fall into a low risk group for future sexual recidivism. Synthesis Overall, in my opinion the Applicant falls into a low risk group for future sexual recidivism. He is low risk to all ages and both sexes. That he has been working within an environment that provides him with access for children for almost 30 years with no complaints or charges suggests that, even if there was an underlying propensity or vulnerability to sexual arousal to prepubescent or pubescent children, he has the capacity to maintain adequate sexual regulation in order to practise safely as a teacher. DELIBERATION 27 In dealing with this application, it is necessary to have regard to the requirements laid down by s 33J of the Commission for Children and Young People Act. Having regard to the legislative scheme set out earlier in this judgment, it is clear that the primary objective is the protection of children by prohibiting certain persons from being involved in child-related employment and this is the focus of this particular review. In relation to the matters set out in s 33J it can immediately be stated (and it was not contested by any party), that the offences to which the applicant pleaded guilty were serious. Those offences were committed against very young children who were members of the applicant's own family and by that relationship and his age, he had a significant influence over them and used that influence to involve them in his indecent acts upon them. Apart from the fact that the offences were committed more than once, in relation to two of his sisters the applicant persisted with his indecent acts although they resisted him. Further, the offences were aggravated by the fact that he used force to hold them down to allow him to complete the acts of indecency against them. 28 The seriousness of those offences is not diminished by the fact that they occurred over a relatively short period (the applicant's evidence being they occurred over a two to three week period), the fact that the applicant was sexually immature and that these indecent acts against his sisters took place, after having spent more than two and a half years in the confines of a seminary, as his first sexual experience at the age of 15 and a half. These matters are relevant to the considerations referred to in s 33J(3) as well as the fact that there was no confusion about the age of the applicant's sisters - he was well aware that they were of a very young age and that his actions were not only wrong but a thorough breach of trust. 29 The applicant, at the age of 57, comes before this Commission more than 40 years after these offences occurred having no further criminal record and with no indication of similar behaviour in his mature years. The evidence shows that he has children of his own, has the trust of teaching colleagues who have not hesitated to permit their children to be placed in the applicant's care during their own absence and the fact that, for over 35 years, he has been employed in primary schools in positions as a teacher through to assistant principal and thus well placed to again undertake this type of behaviour if motivated to do so, yet has given no cause for concern On this review it is significant that, despite this length of time since the offences were committed and the opportunities presented to him over a very lengthy time as a primary school teacher, he has not come to notice in any relevant way for conduct that might be considered relevant for the purposes of this review. As noted by Finnane DCJ and confirmed by the evidence referred to in this judgment, the applicant has the support of senior teachers and he appears to be well regarded amongst his colleagues and accepted not only as a valued teacher, but a person of honesty and integrity and through his skills as a teacher, has made a considerable contribution. It is significant that Finnane DCJ was able to make a finding that the applicant was a person of good character despite the seriousness of these charges relating to conduct when he was himself a young person. I concur with the conclusion expressed by Finnane DCJ that the evidence demonstrates "L"s contrition for these offences against his sisters. All of these factors speak strongly in the applicant's favour and in the Commission exercising its discretion to make the declaration he seeks. 30 The most significant issue that emerges is whether the Commission is satisfied that the applicant does not pose a risk to the safety of children. This consideration commences from a statutory requirement that the applicant is presumed to pose a risk to the safety of children unless he proves to the contrary. In considering the issue of risk, the Commission would follow the approach set out in "R" v New South Wales Commission for Children and Young People [2002] NSWIRComm 101 and in Commission for Children and Young People v "V" (2002) 127 IR 129. In "R", the Commission made the following observations about the legislative scheme then in operation: ... 96. Given that the legislation takes away a fundamental privilege of the ability to work and pursue, in many cases, a profession, and also bearing in mind the very important protection to be accorded to young people, it is highly unlikely that the legislature intended to place additional barriers in the way of an applicant seeking a declaration that the Act not apply, other than the ultimate and understandable requirement to meet the test set out in s 9(4). There is nothing in the Act that suggests anything to the contrary. A person who has, because of past criminal conduct, had his right to work in child-related employment removed by statute and who seeks to use the provision of that same statute to obtain an order that the Act should not apply to him, should not have to face artificial barriers constructed by a convoluted approach to statutory construction when there is the strength of the protection provided by s 9(4). As Wright J said in "A" v Commission for Children and Young People, the legislation is not intended to impose an additional punishment on a person guilty of a criminal offence of a sexual nature, rather it is intended to provide the means of identifying such offenders to the relevant authorities and, where relevant, their employers and to eliminate possible risks that such persons might pose to children. That purpose is not achieved by adopting an approach to statutory construction which places unwarranted barriers in the way of an applicant additional to those found in the combination of s 9(4) and s 9(5) assuming that the Commission otherwise has jurisdiction. What the legislation permits directly to be done should not be permitted to be undone by indirect means. ...

100 I am not able to accept the submission for the respondent Commission that, so long as there is any risk however minimal, an applicant may re-offend and therefore pose a risk to the safety of children, then an order and declaration under s 9(4) cannot be made. Both Dr Westmore and Dr Allnutt were clear in their evidence that, once a person has committed a sexual offence there is always some risk that the person will re-offend, just as there is a risk that the average person without prior convictions for a serious sexual offence may offend. The various studies about which they gave evidence confirm that there are classes of sexual offenders with a high risk of re-offending and there are others with a low risk of re-offending - numerous factors have a role to play in the clinical assessments made or in the application of objective criteria gleaned from numerous case studies.

101. Parliament could not have intended to set up a statutory right to make an application for an order and declaration under s 9(4) if the very people who could make such an application were, because of their previous conviction for a serious sexual offence, denied any ability to obtain an order and declaration because they were, by definition, some sort of future risk of re-offending and therefore a risk of posing a danger to the safety of children. There is nothing in the Second Reading Speeches on the introduction of the Bill which indicates such an added draconian approach as contended for by the respondent Commission. In fact, the contrary appears from the Parliamentary debates. ... 104. All of these matters persuade me that the "risk" referred to in s 9(4) is not a mere theoretical or possible risk arising from the fact of a previous conviction, but is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights. The word "risk", as noted earlier, has a number of possible meanings - resort to extrinsic material is warranted to establish the meaning of the word in the context of this cognate legislation. ... 161 In the preceding paragraph I have raised the issue of the "right to work" as a valuable human right and perhaps a common law right. These propositions require some consideration. In his paper delivered at the Kingsley Laffer Industrial Relations Memorial Lecture (University of Sydney, 23 April 2002) Justice Michael Kirby said:

… judges engaged in labor law cases, and tribunal members in discharging their duties, can also take into account applicable principles of international law as they perform their functions. They can especially do this where those principles concern fundamental human rights. No Australian judge or tribunal member should forget the important step stated in the reasoning of the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1. The Court was there faced with the question whether the common law refusal to acknowledge native title to land could still be accepted as the law, although it was so clearly discriminatory and unjust. In his reasons, which were endorsed in this regard by Chief Justice Mason and Justice McHugh, Justice Brennan pointed out: The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the employment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule …((1992) 175 CLR 1 at 42). This principle is not, of course, confined to the International Covenant on Civil and Political Rights. It is one of general application. It extends to international law as declared by other binding treaties, certainly those to which Australia is a party. It therefore includes the international Coventions of the ILO which Australia has ratified.

Where the common law has no exact precedent, where a statute is ambiguous and, in my view, where the Constitution yields competing interpretations, universal principles of international law may be used to resolve the judicial uncertainty (Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 417-422 [166]-175]). Use of this principle with respect to constitutional interpretation may still be controversial. But use of it in the elucidation of common law principle and the ordinary functions of statutory interpretation is, in my view, wholly orthodox. The common law application is expressly endorsed in Mabo [No 2]. The use in elucidating ambiguous statutory language is comfortable with a longstanding principle of interpretation that attributes to parliaments a purpose (in the absence of clear and express language to the contrary) to respect and uphold the fundamental civil rights of the people (cf Bropho v Western Australia (1990) 171 CLR 1 at 17; Wik Peoples v Queensland (1996) 185 CLR at 146-147; Durham Holdings Pty Ltd v New South Wales (2001) 75 ALJR 501 at 506-508 [27]-[38]). ...

165. Whether it be described as human right, or a common law right, the right to work, in a general sense, appears to be one of the civil rights considered by Parliament in enacting the Prohibited Employment Act and the associated legislative measures. Thus the legislation balances two important concepts which may come into conflict: the right to work and the requirement to protect children from sexual abuse by those in whose charge they are placed. Where it is clear, on the evidence in a particular case, that a person poses a real risk to the safety of children, then the right to work in a position or profession which creates that risk must yield to securing the safety of children. Where, however, an applicant establishes that he or she does not present a risk to the safety of children, then the important principle and human right of the right to work assumes significant proportions. In such a case, it is difficult to see why an order should not be made in favour of the applicant. There may be difficult cases which arise from time to time where the potential risk and the right to work is much more evenly balanced and where it may be appropriate to resort to certain safeguards by attaching conditions pursuant to s 9(9) of the Prohibited Employment Act. As Peterson J said in "L" v the Commission for Children and Young People, the absence of a recognisable potential for risk where there is a factual basis for the view that there exists no risks, will remain an issue for each case, given the wide ranging variations in circumstances which may present. 31 In the case of "V", his Honour Young CJ in Eq accepted the approach in "R" and stated: [42 ] It almost follows, from what I have just said, that one does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". The approach of the plaintiff is to say that children must be read as children generally, and if there is a risk to a section of children which is constituted by a large number of children, then there is a risk to children generally. So that, if in the present case it be said that Mr V is a risk to female teenage children, then he is a risk to children generally.

[43 ] I very much wonder whether that is a proper construction of the Act. If it is to be read so as to preserve a balancing exercise, I would have thought a more balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. If a person is only going to be employed amongst boy children, then the fact that he might be a risk to girl children may be quite irrelevant.

[45] ... There is a two-tier decision-making process in the sense that the Tribunal making the decision must have two foci. Dealing with these foci in no particular order, one focus is the serious sex offence and its circumstances, the second is the current danger, if any, posed by the applicant to children. Sub-section (5) deals mainly with the first focus, that is, that the Tribunal must evaluate the seriousness of the offences taking into account the age of the applicant when the offences were committed, the age of the "victim" at the time and the difference in ages. The second involves the assessment of the applicant's character now which includes the seriousness of the prohibited person's total criminal record, a matter mentioned by (5)(e) and any other matter which the Tribunal considers relevant. Sub-section (5) then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime; and (b) the applicant's current character, all these matters must come together when the Tribunal is making a decision as to whether to exempt the person from the effect of the Act. The decision is then made in the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has a discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised in favour of an applicant unless there was a good reason not to so exercise it 32 Bringing all these matters together in the present case shows the applicant to have committed a number of serious sexual offences against his sisters when they were at a very young age and on some occasions, using force to make them comply with his wishes. Those offences were committed when he was 15 and a half years old and in the following 40 years he has not offended again. He has worked closely with thousands of children in his 35 years of teaching and he has the support of senior teachers and apparently his colleagues as a valuable teacher and a person to be trusted with children. The District Court has found him to be a person of good character who has demonstrated contrition for committing these offences. The significant piece of evidence that completes a favourable picture of the applicant is provided by Dr Allnutt's report. During submissions, all parties accepted that medical experts will not concede that a person is able to be classified as posing no risk of committing serious sexual offences but in the case of the applicant, that risk is calculated to be at its lowest level. 33 Having considered the statutory scheme and in particular the matters requiring attention as laid down by s 33J of the Act, the Commission is satisfied that the applicant has proved that he does not pose a risk to the safety of children and that an order should be made. Apart from the matters identified in the foregoing discussion, there are no other matters considered to be relevant. 34 One further matter requires mention. The parties proceeded on the basis that the applicant had been charged with six offences and had pleaded guilty to each charge. The documents tendered suggest that there were seven charges laid but no indication is given that a plea to six of the charges was accepted or how the seventh charge was handled, whether dismissed or withdrawn. Further, a certificate of conviction refers to five counts (not six) and mentions only three of the sisters (not four). There may be an error or errors in these documents, however, the District Court appears to have proceeded on the basis that all matters were before the Court but does not, in terms, identify the precise offences. Having regard to the desirability of concluding this matter and allowing the applicant to take up his professional life again, the preferable course is to make the declaration pursuant to s 33I of the Act and to give the parties leave to relist the matter at a convenient time in order to regularise the documents. ORDERS 35 (a) The Commission declares that Pt 7, Div 2 of Commission for Children and Young People Act 1998 shall not apply to the applicant known as "L" in respect of the offences specified below: the charges of indecent assault for which "L" was sentenced by the District Court of New South Wales on 18 April 2008 in matter 07/11/0651.

(b) the parties have leave to relist the matter on 24 hours' notice to the other parties.

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