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[2001] NSWIRComm 194
Industrial Relations Commission (NSW)
1981-02-02
Hungerford J
Original judgment source is linked above.
CITATION: LL -v- Commission for Children and Young People [2001] NSWADT 174 DIVISION: Community Services Division APPLICANT PARTIES: LL RESPONDENT Commission for Children and Young People FILE NUMBER: 014030 HEARING DATES: 01/08/2001, 21/08/2001, 20/09/2001 SUBMISSIONS CLOSED: 10/15/2001 DATE OF DECISION: 10/24/2001
BEFORE: Hennessy N (Deputy President) APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Crimes Act 1900 CASES CITED: "A" -v- Commission for Children and Young People and Anor [2001 NSWIRComm 194 AG -v- Commission for Children & Young People [2001] NSWADT 163 APPLICANT REPRESENTATION: G Brady, barrister RESPONDENT I Bourke, barrister ORDERS: Mr LL is not a "prohibited person" as defined in s. 5 of the Child Protection (Prohibited Employment) Act 1998 and is entitled to engage in child-related employment as defined in that Act.
Introduction 1 Mr LL applied to the Tribunal under the Child Protection (Prohibited Employment) Act 1998 (CP Act) for a declaration that the Act does not apply to him in respect of certain offences for which he was convicted on 2 February 1981. Such a declaration would enable Mr LL to engage in "child related employment" as defined by the CP Act. 2 The Tribunal may make a declaration on the application of a "prohibited person". Such a person is defined in s 5(1) as "a person convicted of a serious sex offence, whether before or after the commencement of this subsection." A "serious sex offence" is defined in s 5(3) of the CP Act. 3 On 20 September 2001, after several days of hearing of this matter, it came to my attention that the Industrial Relations Commission (the Commission) had handed down a decision on 28 August 2001 ("A" v Commission for Children and Young People and Anor [2001] NSWIRComm 194) which was relevant to the facts in this case. The Commission decided in that case that s 579 of the Crimes Act 1900 applied to the offences for which the applicant had been convicted. The Commission then made a declaration that the applicant was not a prohibited person and that he was entitled to engage in child related employment. 4 This decision raises the issue as to whether Mr LL is a "prohibited person" given the operation of s 579 of the Crimes Act 1900. In brief, that section provides that convictions for offences which meet specified criteria must be disregarded for all purposes whatsoever, and are inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect. If this section applies to Mr LL's conviction, arguably he would not be a "prohibited person" and would be free to engage in any child related employment. 5 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act) makes it an offence in respect of proceedings in the Community Services Division of the Tribunal, to publish or broadcast except with the consent of the Tribunal, the name of any person mentioned in such proceedings. Although s 126(2) contains an exception in relation to the publication of an official report of the proceedings, because of the sensitivity of this matter I have decided not to publish the applicant's name or that of any other person mentioned in these proceedings. I have not included in this decision any other information which could lead to the applicant's identification. 6 The parties were invited to make submissions on the question of whether I should follow the decision of Hungerford J in the "A" v Commission for Children and Young People and Anor [2001] NSWIRComm 194. The respondent has appealed against that decision to the Full Bench of the Industrial Relations Commission. 7 In the meantime another member of the Tribunal handed down a decision in AG -v- Commission for Children & Young People [2001] NSWADT 163 which applied "A" v Commission for Children and Young People and Anor and declared that the applicant was not a "prohibited person".
Relevant statutory provisions 8 Section 579 of the Crimes Act 1900 provides that: (1) Where, following the conviction of any person for an offence or a finding that a charge of an offence has been proved against any person, whether the conviction or finding was before or after the commencement of the Crimes (Amendment) Act 1961: (a) sentence in respect of the conviction was suspended or deferred upon the person entering into a recognizance or, in substitution for sentence in respect of the conviction, the person was required to enter into a recognizance, or no conviction in respect of the finding was made and the person was discharged conditionally on his or her entering into a recognizance, and (b) a period of fifteen years has elapsed since the recognizance was entered into: (i) without the recognizance having been forfeited during that period or a court having found during that period that the person failed to observe any condition of the recognizance, and (ii) without the person having, during that period, been convicted of an indictable offence on indictment or otherwise or of any other offence punishable by imprisonment (otherwise than under section 82 of the Justices Act 1902 as amended by subsequent Acts) or without a finding during that period that a charge of such an indictable or other offence has been proved against the person, the conviction or finding shall, where that period expired before the commencement of the Crimes (Amendment) Act 1961, as on and from that commencement, or, where that period expires or has expired after that commencement, as on and from the expiration of that period: (c) be disregarded for all purposes whatsoever, and (d) without prejudice to the generality of paragraph (c), be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect. Without prejudice to the generality of the foregoing provisions of this section, any question asked of or concerning that person in or in relation to any criminal, civil or other legal proceedings otherwise than by his or her counsel, attorney or agent or other person acting on his or her behalf may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into. (2) Notwithstanding the provisions of subsection (1), where in any criminal, civil or other legal proceedings the person first referred to in that subsection, by himself or herself, his or her counsel, attorney or agent or other person acting on his or her behalf, otherwise than in answer to a question that can, in accordance with the last paragraph of that subsection, be answered in the negative, makes an assertion that denies the fact that the conviction or finding took place or that the recognizance was entered into, then the conviction, finding or recognizance is admissible: (a) in those proceedings, as to the character, credit or reputation of the person so referred to, (b) in any prosecution for perjury or false swearing founded on the assertion. The non-disclosure of the conviction, finding or recognizance in the making or giving of a statement or evidence as to the good character, credit or reputation of the person so referred to shall not of itself be taken, for the purposes of this subsection, to mean that the statement or evidence contains such an assertion. (3) In this section legal proceedings includes any application for a licence, registration, authority, permit or the like under any statute. (4) This section does not affect the operation of section 55 of the Defamation Act 1974, or the operation of section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995, for the purposes of section 55 of the Defamation Act 1974.
Agreed Facts 9 The agreed facts are that on 2 February 1981 Mr LL was convicted of a "serious sex offence" within the meaning of that term in the CP Act. His sentence was deferred on entering into a recognisance under s 558 of the Crimes Act 1900 . A period of 15 years has elapsed since the recognisance was entered into without the recognisance being forfeited and without Mr LL being convicted of an indictable offence during that period. 10 The respondent conceded that Mr LL's conviction in 1981 comes within the terms of s 579 of the Crimes Act .
Respondent's submissions 11 The respondent relied on their submissions to the Tribunal in AG -v- Commission for Children & Young People and made supplementary observations and submissions in relation to this case. In their view, the previous decisions of the Commission and the Tribunal were wrong in law for reasons which can be summarised as follows: · s 579 of the Crimes Act is inconsistent with s 5 of the CP Act because each enactment cannot be given full and unqualified application to the applicant; · to the extent of the inconsistency, the CP Act prevails; · the CP Act applies to the conduct that led to the conviction. Even if the conviction can be disregarded, the conduct must be taken into account; and · if s 579 applies, it produces arbitrary and illogical results because it does not apply to convictions dealt with by way of community service order, periodic or home detention or under the now repealed s 556A(1)(a) of the Crimes Act . Applicant's submissions 12 The applicant submitted that while the Tribunal is not bound by the decision of Industrial Relations Commission, or the previous decision of the Tribunal, those decisions are persuasive. The Tribunal should only depart from them if satisfied that they are wrong in law. The respondent conceded that this submission was correct. 13 The applicant urged the Tribunal to rely on the reasoning set out by Judicial Member, Britton in AG -v- Commission for Children & Young People [2001] NSWADT 163. The applicant also responded to the supplementary submissions made by the respondent.
Decision and Reasons 14 I agree that while the Tribunal is not bound by the decision of Industrial Relations Commission, or the previous decision of this Tribunal, they are persuasive. The Tribunal should only depart from them if satisfied that they are clearly wrong in law. 15 Having read the decisions of the Industrial Relations Commission and this Tribunal and the submissions from the applicant and respondent, I am satisfied that the respondent has raised some arguable grounds for concluding that the previous decisions are wrong in law. However, I am not satisfied that those decisions are clearly wrong in law. In these circumstances I intend to apply those decisions to the circumstances of this case. 16 Given the respondent's concession that Mr LL's conviction in 1981 comes within the terms of s 579 of the Crimes Act, I find that Mr LL is not a prohibited person as defined in s 5 of the CP Act and is entitled to engage in child related employment as defined in that Act.
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