The first three questions were submitted to require a positive answer in the light of the evidence and the fourth a negative answer.
23 As to the first question, there is no room for doubting that Ms L was a prohibited person within the meaning of s.5 of the Act. The offence of which she was convicted arose under s.61E of (2) of the Crimes Act 1900 and involved a maximum penalty of imprisonment for two years (now see s.61O of the Crimes Act in respect of which the same offence now carries a maximum penalty of seven years imprisonment). Accordingly, the offence is a serious sexual offence for the purposes of s.5(3)(a) of the Act.
24 As the second question, two forms of employment rise in the evidence. The first is Ms L's permanent part-time work as a night shift enrolled nurse in a private hospital in which she may be obliged to have contact with children without direct supervision. In that context she is working in child-related employment and, in order to continue therein, would require a declaration that the Act is inapplicable to her offence.
25 As to the third question, it is unnecessary to consider the consequences with respect to the cause of the discovery of her prohibited person status, namely the application for additional work through the employment agency. The nature of any work to be done under that contact is not in evidence. However, the Act applies not to prevent persons from engaging in a particular employment, but in relation to a specified offence. A declaration that the Act does not apply in relation to that offence means that Ms L would be entitled to undertake any work in relation to child-related employment wherever situated in New South Wales (see the judgment of Kavanagh J in G v J & H, Unreported, [2001] NSWIRComm 69 at paragraph 37).
26 The fourth question raised is whether Ms L poses a risk to children in terms of s.9(4) of the Act. This question requires somewhat more lengthy consideration.
27 Section 9(4) requires the Commission to abstain from making an order unless it considers the person "does not pose a risk to the safety of children". This test raises a question the answer to which in a given case may not readily appear. Risk is a concept the parameters of which may vary from the perspective of the assessor, but more particularly, will also vary according to the known facts. On one view of it, the exposure of children to adults, even in the usually supremely safe context of child and parent, will always contain the possibility of a risk to the safety of a child. However, in the absence of some indication of actual risk, for example from a parent, the position will be that the child is to be regarded as not at risk. Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm. The existence of that potential will require some foundation in fact. The absence of that recognisable potential, it being that absence which the Act by its negative expression of the test in s.9(4) requires before an order can be made, will depend on the tribunal finding some factual basis for the view that there exists no risk. What will amount to a sufficient basis for such a view must, I think, remain an issue for each case, given the wide-ranging variations in circumstances which may present.
28 Here, of course, the conduct of Ms L might have readily led to a conclusion that such a risk was posed. Time, however, has now run for approximately 12 years during which such risk as may have been existent was accepted by the relevant industry professionals as so minimal as to permit Ms L to have the care and custody of her child. That position has prevailed despite, as Ms Howell reported, that there are no psychometric tools available to help determine the level of risk with female sexual offenders.
29 I consider that the facts in this case operate as an illustration of the way in which the presumption of risk in child-related employment attributed by the Act to a conviction for a serious sexual offence may be displaced. Those facts certainly would not permit a positive conclusion that she would pose a risk to the safety of children thereby preventing the Commission from making an order under the Act. While the offence involved was of a generally serious kind (s9(5)(a)), Ms L's total criminal record involves no other issues (s9(5)(e)). I have concluded that the evidence establishes to a satisfactory degree that Ms L does not pose a risk to the safety of children. It is for these reasons and, also taking into account that none of the other matters adverted in s9(5) would operate in this case against the interest of Ms L, that I made the orders set out in paragraph 4 hereof.