"M" v Commission for Children and Young People - [2003] NSWIRComm 80 - NSWIRComm 2003 case summary — Zoe

NSWNSWIRComm

"M" v Commission for Children and Young People

[2003] NSWIRComm 80

Industrial Relations Commission (NSW)|2003-10-03|Before: Boland J, Mr P

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-10-03

Before

Boland J, Mr P

Catchwords

03/17/2003 DATE OF JUDGMENT: 03/28/2003

Source

Original judgment source is linked above.

Catchwords

03/17/2003 DATE OF JUDGMENT: 03/28/2003

Judgment (73 paragraphs)

[1]

CITATION : "M" v Commission for Children and Young People [2003] NSWIRComm 80 APPLICANT "M" PARTIES : RESPONDENT Commission for Children and Young People FILE NUMBER: IRC 250 of 2003 CORAM: Boland J Prohibited employment - Application under section 9(6) of the Child Protection (Prohibited Employment) Act 1998 for order staying the operation of a prohibition - Applicant convicted of two counts of indecent assault against adult females in 1981 - Recent allegations of improper conduct - Tests for determining whether stay should be granted - Application refused CATCHWORDS : Practice and Procedure - Application under section 9(6) of the Child Protection (Prohibited Employment) Act 1998 for order staying the operation of a prohibition - Applicant convicted of two counts of indecent assault against adult females in 1981 - Recent allegations of improper conduct - Tests for determining whether stay should be granted - Application refused Child Protection (Offenders Registration) Act 2000 Child Protection (Prohibited Employment) Act 1998 Commission for Children and Young People Act 1998 Crimes Act 1900 LEGISLATION CITED : Crimes (Amendment) Act 1961 Defamation Act 1974 Evidence Act 1995 Industrial Relations Act 1996 Justices Act 1902 A v Commission for Children and Young People [2001] NSWIRComm 194 CASES CITED : Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148 Commission for Children and Young People v AG [2002] NSWSC 582 Commission for Children and Young People v "A" [2003] NSWIRComm 6 HEARING DATES: 03/10/2003; 03/17/2003 DATE OF JUDGMENT: 03/28/2003

[2]

[6]

2 Section 9 of the Child Protection (Prohibited Employment) Act provides: 9. IRC and ADT may make declarations concerning prohibited persons (1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence. (2) A "relevant tribunal" is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. (3) The Industrial Relations Commission may not make an order under this section unless: (a) the person is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from that employment under this Act, or (b) the person was such an employee who was dismissed from that employment under this Act. (4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. (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, (a1) the period of time since those offences were committed, (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, (d1) the prohibited person's present age, (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, by order, 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. (8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 8A in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal. (9) Orders under this section may be made subject to conditions. (10) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order. (11) The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs. (b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings. 3 For present purposes a "prohibited person" is defined in s 5 of the Act as follows: 5. Prohibited persons (1) For the purposes of this Act, a "prohibited person" means a person convicted of a serious sex offence, whether before or after the commencement of this subsection, or a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000 . (2) For the purposes of this Act, a person is not a prohibited person in respect of an offence if an order in force under section 9 declares that this Act is not to apply to the person in respect of the offence. (3) In this section: "serious sex offence" means (subject to subsections (4) and (5)): … (b) an offence, involving sexual activity or acts of indecency, that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in New South Wales, … (4) An offence that was a serious sex offence at the time of its commission is not a serious sex offence for the purposes of this Act if the conduct constituting the offence has ceased to be an offence in New South Wales. (5) An offence involving sexual activity or an act of indecency is not a serious sex offence for the purposes of this Act if the conduct constituting the offence: (a) occurred in a public place, and (b) would not have constituted an offence in New South Wales if the place were not a public place. (6) For the purposes of this Act, section 579 of the Crimes Act 1900 does not apply to or in respect of a serious sex offence.

[46]

33 In light of what was regarded as a false declaration, the police charged the applicant under s 7(6) of the Act. However, the police later withdrew the charge, partly it seems, because of some doubt over whether the applicant might not be a prohibited person because of the effect of s 579 of the Crimes Act 1900. That section provides: 579. Evidence of proceedings dealt with by way of recognizance after 15 years (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 .

[50]

37 Mr MacMahon's submissions in support of the stay order may be summarised as follows: · The principles to be applied in respect of an application under s 9(6) of the Act were laid down by Wright J President in "A" and the Commission for Children and Young People (No 2) [2000] NSWIRComm 219. · Having regard to those principles, the applicant "M" has a seriously arguable case, he would suffer detriment if the stay is not granted and the balance of considerations is in favour of granting the stay. · The offences in 1981 did not involve children. Given the nature of the offences the applicant does not pose a risk to the safety of children. · The applicant disclosed the 1981 offences in 1991 and 1993 when he applied first for casual employment and later for permanent employment with the Department. · In 1997 the applicant was the subject of further assessment as to his suitability to remain in child-related employment. He was returned to his employment and a period of monitoring occurred. This was in circumstances where the Department was aware of the 1965 incident. · In October 1998 the applicant was informed by the Department that following the monitoring process it had been determined that the applicant's present conduct conformed to that expected of a person in his position and that the case was now closed. · The investigation undertaken by the Department in 1997 was a very thorough one and supports the proposition that the applicant has a seriously arguable case. · The allegations against the applicant post-1997/98 relating to improper conduct were all properly and fully investigated and found to have no substance. In relation to two of the allegations the applicant self-reported the incidents giving rise to the allegations. · The evidence of 'W' provides unqualified support for a finding that the applicant does not pose a risk to the safety of children. · The applicant will suffer detriment if he is unable to return to his professional counselling duties and voluntary activities involving "LifeLine"; he will be inhibited in his ability to assist in the care of his partner's disabled child by being prevented from taking the child to school and picking the child up after school. · If the Court were to grant the stay it is open to the Court to impose conditions that it regards as appropriate. Submissions for the respondent

[55]

27 The approach so distilled provides a useful analogy that should be adopted in this matter provided it is clear that the applicant must show more than a serious question to be tried and whether that is described in terms of a prima facie case or something more does not require final determination. 28 It is sufficient to note that this application has been approached on the basis that, although it may not be necessary that the applicant show a distinct probability of success, the applicant should demonstrate a seriously arguable case and must, at least at the interlocutory stage, demonstrate that the criterion in s 9(4) has been satisfied. That is, at the requisite level, in terms of the evidence as it stands, the applicant must show that he does not pose a risk to the safety of children. Again, as considered by Mason ACJ, the question of the degree of likelihood of success of the applicant in the substantive proceedings is a factor which will often also be relevant to the question of the balance of convenience. In summary, the applicant must show not only a seriously arguable case but also that he or she will suffer detriment if the stay is not granted and, also that the balancing of relevant considerations favours the grant of the stay. 29 One final observation should be made as to s 9(4). It is clear from both its terms and evident purpose that the test imposes an obligation to consider whether it is satisfied at the time the Commission is considering the application. Although past conduct may be relevant it is only relevant to the extent that it may assist that determination. Regard must also be paid to possible future conduct. There is another factor which must be considered if regard is had by way of analogy to the principles as to the grant of interlocutory injunctions. In that area an important consideration is the preservation to the extent feasible and appropriate of the status quo. In this area there is either no status quo in a relevant sense or the status quo is the fact of the statutory prohibition imposed on the applicant. 30 In considering the application and scope of the statute the precise factual circumstances which will exist in all or the vast majority of cases must be considered. They include the fact that the applicant will have been convicted of one or more serious criminal offences and that he or she will have served any relevant sentence. The applicant will most likely have had no further convictions and not be the subject of further adverse notifications to the authorities. Accordingly, the fact alone of absence of further convictions and absence of further adverse notification to the authorities are not matters of themselves which will necessarily, or be likely to, lead to a grant of an order under s 9. 31 Such considerations serve to show the broad public interest the legislation is intended to serve. It is not a statute intended to impose an additional punishment on a person guilty of a criminal offence of a sexual nature. Rather it is intended to provide a means to identify such offenders to the relevant authorities and, where relevant, their employers, and to eliminate to the greatest extent possible the risks that such persons might pose to children particularly from any institutional contact or relationship they might have with them. These considerations serve to emphasise the importance of the public interest considerations embodied in the terms and purposes of the legislation and the stringency of the approach to be taken by the Commission prior to making an order whether final or interlocutory.

"M" v Commission for Children and Young People

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Judgment (73 paragraphs)

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