"M" v Commission for Children and Young People

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

APPLICANT Mr P MacMahon Solicitor: MacMahon Associates Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr R McIIwaine Solicitor: IV Knight Crown Solicitor

JUDGMENT: - 27 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Matter No IRC 250 of 2003 "M" v COMMISSION FOR CHILDREN AND YOUNG PEOPLE

Application under s 9 of the Child Protection (Prohibited Employment) Act 1998 JUDGMENT [2003] NSW IRComm 80 1 The applicant in these proceedings, to be known as "M", is seeking a declaration under s 9 of the Child Protection (Prohibited Employment) Act 1998 ("the Act") that the Act does not apply to him in respect of an offence involving two counts of indecent assault on females dealt with at the Prahran Magistrate's Court in Victoria on 30 October 1981. He also seeks an order staying the operation of a prohibition under the Act pending the determination of the matter. This decision deals with the application for a stay under s 9(6) of the Act.

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.

4 Section 6(1) of the Act provides: 6. Offences relating to prohibited persons (1) Offence of applying for, undertaking or remaining in child-related employment A prohibited person must not: (a) apply for child-related employment, or (b) undertake child-related employment, or (c) remain in child-related employment. Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both. 5 Section 7 of the Act provides: 7. Employer to ascertain whether employee is prohibited person (1) Offence of employing person in child-related employment without requiring disclosure An employer must not commence employing any other person in child-related employment without first requiring that other person to disclose whether or not that other person is a prohibited person. Maximum penalty: 20 penalty units, in the case of a corporation, and 10 penalty units in any other case.

6 It may be seen from the scheme of the Act that a person who commits a serious sex offence is to be regarded as a "prohibited person" and may not apply for, undertake or remain in "child related employment". An employer must not commence employing any other person in child-related employment without first requiring that other person to disclose whether or not that other person is a prohibited person.

7 Child related employment is defined to include "employment in schools or other educational institutions (not being universities)". A prohibited person may, however, apply for a declaration that the Act is not to apply to the person in respect of a specified offence. Evidence

8 The applicant tendered an affidavit the detail of which I will come to shortly. Other evidence tendered by the applicant included:

· A confidential letter dated 21 May 1997 to the applicant from the Assistant Director-General, Department of School Education ("the Department") advising him that as part of a Department-wide review of teachers against whom allegations had been made of improper conduct of a sexual nature it had been decided there should be a further investigation of the applicant. The letter advised the applicant of a meeting which he was to attend with two senior staff from the Department's Case Management Unit.

· A letter (undated) to the applicant from the Department advising him of a formal monitoring process to be carried out with respect to his duties as a school counsellor. The letter stated, "The objectives of the monitoring are to ensure your relationships with, and conduct towards, students are appropriate, professional and in keeping with the Department of School Education's code of conduct and the ethical and confidentiality standards set out in the current School Counsellor's Manual". The letter asked the applicant to sign a monitoring agreement.

· A letter dated 8 October 1998 to the applicant from the Assistant Director-General advising him that following various reports on his conduct relating to students that it had "now been determined that your present conduct conforms to that expected of a person in your position. No further action by the Case Management Unit is warranted, and the case is now closed."

· A letter dated 26 August 2002 to the applicant from the Acting Director, Child Protection Investigation, Department of Education and Training. The letter informed the person that arising out of the offences committed by him in 1981 that he was a "prohibited person". The Acting Director said "This came to my attention when recently it was discovered on 23 August 2000 you signed a Prohibited Employment Declaration declaring that you were not a prohibited person under the Act". The letter went on to indicate that consideration was being given to the termination of the applicant's employment as a consequence of his prohibited employment status. However, before doing so the applicant was invited to make a submission to show cause why his employment should not be terminated. In the interim, the applicant was directed to attend for work at the Department's Drug Education Unit, Ryde, from 2 September 2002.

9 The applicant gave oral evidence and was subject to cross examination. In his oral evidence the applicant considered that he would continue to suffer detriment if the stay was not granted in four ways. Firstly, he would be unable to pursue his chosen profession of counselling and this was a matter of great concern to him. Secondly, he was incurring additional expense and inconvenience in having to travel to Ryde each day. Thirdly, he felt that he was unable to assist his partner in caring for his partner's child, who was disabled, by being unable to drop off and pick up the child each day because this meant entering the school grounds. Fourthly, the applicant worked as a volunteer telephone counsellor for "Lifeline" which required volunteers to make a prohibited employment declaration. Being a prohibited person the applicant felt he would be unable to continue his volunteer work.

10 There were other matters covered in the applicant's oral evidence - and a number of concerns I have about the evidence - and I will address these in the course of this decision. 11 Oral evidence was also given by a colleague who works closely with the applicant. It is not appropriate to name the colleague - I will refer to him as 'W' - but he is a support teacher working with children with behavioural problems in the school district in which the applicant was working as a counsellor. 'W' shared the same office as the applicant and had worked with the applicant since 1995. 'W' said he had a close professional relationship with the applicant but not a close personal relationship in the sense they did not socialise. 'W' regarded the applicant as highly competent and said the applicant had been his mentor. 'W' said the applicant had great expertise in dealing with children who were emotionally distressed or had behavioural problems. 'W' said the only fault with the applicant was that he did too much, "he spread himself too thin because he went behind the counselling" by, for example, making himself available outside normal school hours. 'W' said he never saw or sensed that the applicant was doing anything inappropriate in the way he dealt with children.

12 'W' indicated that he had asked the applicant to assist the young son of his partner who was experiencing an emotional problem in relation to the son's natural father. As a consequence the father made certain threats against the applicant and 'W'. The assistance provided by the applicant to the son was contrary to guidelines governing the work of school counsellors.

13 'W' said he knew of the offences committed by the applicant in 1981 and was informed of this "last month". 'W' did not become aware of the 1965 incident until the night prior to him giving evidence in these proceedings. 14 The Commission for Children and Young People ("the respondent") tendered two volumes of material summonsed from the Department of Education and Training relating to the applicant. Other material tendered included a statement of the applicant's criminal record (New South Wales) and material produced by the Attorney-General's Department, Child Protection Crime Team and Department of Community Services pursuant to s 14A of the Commission for Children & Young People Act 1998.

15 The applicant is 54 years of age. He is employed as a school counsellor with the New South Wales Department of Education and Training. He holds the following qualifications:

· Diploma of Teaching (Primary). · Bachelor of Special Education. · Graduate Diploma of Vocational Counselling. · Master of Arts - Clinical Drug Dependency.

16 It was common ground that he committed the 1981 offences with which he was charged. The offences were dealt with by the Magistrate by placing the applicant on a recognisance of $300.00 to be of good behaviour for a period of time and to continue to receive counselling and treatment from a medical practitioner for such period as the medical practitioner deemed necessary. On 29 October 1982 the matters were struck out as the applicant had fulfilled the conditions of his bond. No conviction was recorded. There was no dispute that the offences constituted a "serious sex offence" within the meaning of the Act.

17 The two charges arose out of separate incidents in May 1981 and July 1981. Each charge alleged that the applicant approached an adult woman (strangers to the applicant) touched them on the breast and ran away. The applicant pleaded guilty to the charges.

18 At the time of the offences the applicant said he was suffering from very considerable mental health problems which arose out of the stress of dealing with his wife's psychiatric illness and her attempts at suicide. This resulted, he said, in obtaining medical and psychiatric assistance for himself and being prescribed anti-depressant medication. The applicant said he believed his mental condition contributed to his commission of the offences.

19 In 1986 it appears that the applicant applied for a position with the Department of Community Services ("DOCS") at Phillips House, a residential centre for state wards. He was successful in obtaining the position but within days his employment was terminated because a check on his background revealed the Victorian offences that allegedly he had not disclosed at the interview stage.

20 In June 1991 the applicant applied for approval to teach as a casual teacher with the Department. At the time, the applicant disclosed the 1981 offences to the Department. The Department granted its approval of the applicant to teach on a casual basis.

21 In 1993 the applicant was interviewed as to his suitability for approval for a permanent appointment to the NSW Teaching Service. At the interview the applicant revealed the Victorian offences. In a record of the interview taken by the then acting director of personnel for the Department it was noted: Reference was made to allegations regarding sexual assault on a minor made in an anonymous phone call to Mr Smith (an officer of the Department). Mr [M] categorically denied that he had had any such involvement. He was extremely concerned that such an allegation would be made.

22 The applicant's application for permanent employment was approved. At the end of 1994 the applicant was appointed as a permanent school counsellor and continued in that employment until he was transferred, on an interim basis pending a decision about his future employment, to the Drug Education Unit in September 2002. The applicant is currently on sick leave.

23 In 1997, following the Wood Royal Commission into paedophilia, investigations were carried out in respect of teaching staff about whom past allegations of improper conduct of a sexual nature had been made. Because of the 1981 offences the applicant was caught up in the investigation. He was stood down with full pay whilst the investigation was undertaken. At about the same time an allegation surfaced to the effect that the applicant had been charged with indecent assault offences against a seven year old girl in Victoria in 1965. The charges were not authorised and were, therefore, dropped. This allegation was investigated. The record of interview with the applicant over this matter indicated that he said:

· He did not know he had been charged with indecent assault and indecent exposure relating to a seven year old girl in 1965 when he was 16 years of age.

· He was interviewed by police over the matter. His father was present at the interview. He and his father were never contacted by the police after the interview.

· The girl was the daughter of neighbours. He and the girl took their clothes off. He did not do anything to hurt her or force her to do anything she did not want to do. He could not recall whether there had been any physical contact.

· The incident was "normal adolescent sexual play" and he did not break the law. He did not perceive the girl to be younger than him.

· He came from a difficult family background. He was an isolated single child with few friends; attended boarding school and had limited social contacts.

· He found the police intervention traumatic and felt ashamed about the incident.

24 Other allegations were made against the applicant, again in 1997, by officers from DOCS to the effect that the applicant was "over-involved" in child protection cases, although there were no specific allegations of misconduct.

25 The investigations into the applicant's background and conduct which followed found that there were no specific allegations of improper conduct of a sexual or other nature against him that required further Departmental investigation but that the applicant's criminal and psychological history raised a concern about his ability to undertake school counselling or a classroom teaching role and required referral to HealthQuest for a relevant and appropriate psychological assessment. Amongst the recommendations arising out of the investigation were that:

· Refer 'M' for a HealthQuest psychological assessment of his fitness to undertake duties as a school counsellor or a classroom teacher in consideration of his psychological and associated criminal background;

· 'M' should continue to remain suspended from usual duties pending the completion of the HealthQuest assessment.

26 For reasons that are not entirely clear to me, the applicant was not required to undergo a HealthQuest assessment and in July 1997 he returned to his school position on the basis that he sign a "monitoring agreement" to which I earlier referred. This meant he was to be closely monitored for a period of 12 months.

27 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.

28 In February and March 2000 notifications were received by the Child Protection Investigation Unit ("CPIU") of the Department that the applicant had approached a mother of one of the students of the high school at which the applicant was working, with a request that she pose for "explicit" photos for transmission on the Internet. The allegations were delegated to the applicant's school principal to investigate. The principal was unable to substantiate the allegations. Apparently, it was decided that because no student or young person under the age of consent was involved, it was not a matter for the CPIU to investigate. However, because of the use of the word "explicit" and because of a suggestion that blackmail was involved, the matter was informally reported to the Child Protection Enforcement Agency for consideration. It was also recommended that the applicant be counselled regarding strategies he might adopt to obviate the risk of such serious allegations in the future.

29 In February 2002 a domestic altercation occurred between the applicant and his long-term partner. The applicant called the police. The applicant claimed to have been baby-sitting his partner's children when his partner came home intoxicated. His partner accused the applicant of swearing at her eight year old son and of entering her 12 year old daughter's bedroom. The police did not take any action over the matter and as there was no evidence of child abuse the CPID took no action.

30 In March 2002 a person with whom the applicant shared a house (not a relationship) allegedly became intoxicated and "deranged". The applicant called the police. The person alleged that the applicant had exposed her five year old son to pornography on the internet, allowed her son to see him naked and inappropriately touched her son.

31 It appears that the police took no action in relation to the incident with the co-tenant but the incident triggered further consideration within the CPID. An investigator did a further risk assessment of the applicant and based on his background and some nine incidents, including those that I have referred to in this judgment, the investigator came to the conclusion that the applicant was a "significant" risk to children.

32 It also appears that at sometime towards the middle of 2002 it came to the Department's attention that on 23 August 2000 the applicant had signed a "Prohibited Employment Declaration" declaring that he was not a prohibited person (the Child Protection (Prohibited Employment) Act came into force on 3 July 2000). As earlier outlined, the applicant was informed by letter on 26 August 2002 that in light of what the Department considered to be a false declaration because of the 1981 offences, consideration was being given to the termination of the applicant's employment as a consequence of his prohibited employment status. However, before doing so the applicant was invited to make a submission to show cause why his employment should not be terminated. In the interim, the applicant was directed to attend for work at the Department's Drug Education Unit, Ryde, from 2 September 2002.

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 .

34 It may be seen that, relevantly, the effect of s 579 is that where a person following a conviction or a finding that an offence has been proved is required to enter into a recognisance and where the recognisance is not forfeited and thereafter a period of 15 years has elapsed, certain conditions apply. Specifically, the matter which has been dealt with is to be "disregarded for all purposes whatsoever" and is "inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect."

35 Mr Paul MacMahon, solicitor for the applicant, wrote to the Department in September 2002 drawing attention to s 579 and to a decision by Hungerford J in A v Commission for Children and Young People [2001] NSWIRComm 194 and a decision of Dowd J in Commission for Children and Young People v AG [2002] NSWSC 582. In A v Commission for Children and Young People, Hungerford J held, in effect, that there was no inconsistency between the Child Protection (Prohibited Employment) Act and s 579 of the Crimes Act and granted a declaration that "on the true construction of the Child Protection (Prohibited Employment) Act 1998 "A" was not a "prohibited person" as defined in s 5 thereof and was entitled to engage in child-related employment free from the operation of the said Act with respect to him." In Commission for Children and Young People v AG, Dowd J agreed with the reasoning of Hungerford J.

36 In the absence of the Department's acceptance of Mr MacMahon's contentions regarding s 579, it appears from the material tendered that he then took steps on behalf of his client to initiate these proceedings. In the meantime, a Full Bench of the Commission in Court Session, in Commission for Children and Young People v "A" [2003] NSWIRComm 6, overturned the judgment of Hungerford J at first instance. This explains why no reliance was placed on A v Commission for Children and Young People in the proceedings before me.

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

38 Mr R McIlwaine, solicitor, appeared for the respondent. Mr McIlwaine opposed the orders sought by the applicant. His submissions may be summarised as follows:

· In considering whether a stay order should be granted, the Commission should apply the decision of Wright J, President in A and The Commission for Children and Young People (No 2) . In that respect, the Commission needs to be satisfied the applicant has demonstrated a seriously arguable case and must demonstrate that he does not pose a risk to the safety of children. · The applicant must also show the he would suffer detriment if the stay is not granted and further, that the balancing of relevant considerations favours the grant of a stay. · The applicant has failed to show that he will suffer any detriment if a stay is not granted. · The applicant has failed to demonstrate he has a seriously arguable case. · A document prepared by the Department in March 2002 assessed the applicant as a significant risk to children.

· In 1997 a recommendation was made that the applicant be referred to HealthQuest for psychological assessment. This did not occur. · Until the issues raised in the March 2002 assessment are fully investigated and expert psychiatric evidence is placed before the Commission, the Commission could not be satisfied that the applicant has a seriously arguable case. Alternatively, balancing the public interest underlying the Act, its protective nature and the many issues raised by the evidence as to whether the applicant has satisfied the Commission that he is not a risk to children, the Commission should refuse the orders sought. Consideration

39 In A and The Commission for Children and Young People (No 2), Wright J set out what he considered to be the appropriate principles applicable to an application for a stay under s 9(6) of the Act and said at pars [26] to [31]: [S]ubject to some important modifications, the principles applicable to the grant of an interlocutory injunction are more likely to provide a surer guide to the approach that should be adopted. A useful distillation of relevant authority is to be found in the judgment of Mason ACJ, as his Honour then was, in Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148 at 153. His Honour held: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction ... that there is "a serious question to be tried" ... is the correct test to be applied at least in the majority of cases ... His Honour also held at 154: However, it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. The degree of likelihood of success in the action is a factor that is related to the balance of convenience in a way shortly to be mentioned.

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.

40 In these proceedings I intend, with respect, to follow the approach taken by Wright J in A and The Commission for Children and Young People (No 2). The first issue, therefore, is whether there is a serious issue to be tried in the sense that if the evidence remains as it is there is a probability that in the substantive hearing the applicant will be held entitled to relief. That is, whether there is a probability the applicant will be able to show that he does not pose a risk to the safety of children.

41 In the applicant's favour is the fact that the Victorian offences were committed 22 years ago, did not involve children, the recognisance entered into by the applicant at the time was not forfeited and no conviction was recorded. Further, apart from the 1981 offences the applicant has no other criminal record apart, he said, from some speeding offences in New South Wales. The applicant has also been the subject of close attention by the Department and in 1997/1998 his behaviour and conduct was subject to monitoring for a period of 12 months. No fault was found with his behaviour or conduct as a counsellor.

42 There was other positive evidence about the applicant including evidence given by one of the applicant's work colleagues who had worked closely with the applicant and who held the applicant in very high regard personally and professionally. The colleague's evidence was to the effect that as far as he could state, given his knowledge of the applicant in the working environment (they shared the same office), the applicant did not pose a risk to the safety of children. The colleague was aware of the applicant's 1981 offences and the incident in 1965.

43 There are, however, a number of considerations that, on the current state of the evidence, undermine the probability that the applicant would be entitled to final relief. I go firstly to the applicant's evidence. His affidavit, sworn on 16 January 2003, stated: To the best of my knowledge and belief I have not been the subject of any allegations by any person to the effect that I have abused or otherwise ill-treated any child in the course of my employment or otherwise.

44 The statement was at best misleading and at worst untrue. There were two incidents in 2002 allegedly involving children of the applicant's partner and a child of a co-tenant and one incident in 1965 involving an allegation that the applicant had been charged with indecent assault in relation to a seven year old girl. None of these allegations were referred to in the applicant's affidavit. What is puzzling about the applicant's failure to mention these allegations is that it must have been apparent to him that the Department was aware of them because they had been the subject of investigation and that, therefore, it was highly probable the respondent would be aware of these allegations as, indeed, the cross examination of the applicant demonstrated. Nevertheless, the applicant could offer no good reason why he had not mentioned these allegations in his affidavit.

45 The applicant's failure to be completely forthright and honest about these allegations in an application by him in respect of which the Commission has to find that he does not pose a risk to the safety of children, is a matter that counts heavily against the stay order being granted. In this connection I note that in the interview in 1993 where the applicant was seeking permanent employment status he vigorously denied any incident resembling that which occurred in 1965.

46 Another consideration in the context of whether there is a serious issue to be tried is that the applicant has from time to time suffered from some form of mental illness. In 1981 he apparently committed the offences in circumstances where he was suffering from depression. The applicant is currently on sick leave as a consequence of depression. Despite the fact that on at least one occasion it had been recommended to the Department that the applicant undergo a psychiatric assessment, that never occurred. Apparently, the applicant has arranged for an appropriate medical opinion as to his mental state as part of the evidence to be presented in the substantive proceedings. But as matters currently stand, I have no particular evidence as to the applicant's mental state in the context of what I have to decide.

47 A further consideration is the fact that in recent times the applicant has attracted a number of allegations relating to conduct of a sexual nature. At the respondent submitted, this presents a "worrying picture". It should be observed that two of the allegations came to the notice of authorities as a consequence of the applicant himself reporting incidents involving his partner and a co-tenant. But as the investigator who compiled the risk assessment of the applicant in March 2002 said in her report: It would appear that the women that Mr [M] has had some contact/involvement with are all unempowered women on their own with children, some of whom are already known to DOCS. He assists with custody issues, baby sits, etc. He calls the police if they make allegations when they are intoxicated, the police take no action when the allegations are made. Subsequently, Mr [M] self-refers to CPID. While some of the allegations made while women were allegedly drunk appear minor (eg. swearing at children), the pattern of behaviour that emerges when all of Mr [M's] cases are viewed together is disturbing.

48 The investigator who compiled the March 2002 report assessed the applicant's risk to children as "significant". I have no evidence as to the investigator's qualifications or standing to make the observations she did and what she stated in her report has not been tested in the Commission. However, these are interlocutory proceedings and I am entitled to take the report into account.

49 Most of the matters that the Commission is required to take into account in determining whether a person poses a risk to the safety of children relate to the relevant offence or offences, which in this case are the offences committed in 1981. For example, pursuant to s 9(5) of the Act, the Commission is to take into account the seriousness of the offences with respect to which the person is a prohibited person, the period of time since those offences were committed and the difference in age between the prohibited person and each such victim. However, the Commission is also to take into account "such other matters as the tribunal considers relevant." Accordingly, I consider it relevant to take into account the 1965 incident and what has been described as a "worrying picture" of recent allegations regarding the applicant's conduct.

50 In arriving at a decision as to whether I should grant the stay order sought by the applicant I am conscious of the fact that if the only question I had to consider in relation to the stay application were the 1981 offences, there would be little standing in the way of granting the application. I am also conscious of the fact that the applicant has been subjected to very considerable stress and uncertainty over the past six years in being subjected to a number of investigations into his conduct and behaviour and that in respect of each of the allegations that have been made against him the allegations have not been substantiated.

51 It may well be that, ultimately, the applicant is entitled to the order he seeks. However, the very existence of the allegations made against the applicant in the past three years, the possibility that they represent a pattern of improper behaviour, the conclusions in the investigator's March 2002 report that the applicant represents a significant risk to children, the absence of any evidence regarding the current state of the applicant's mental health and the lack of complete candour on the applicant's part in giving his evidence in these proceedings, leads me to the conclusion in these interlocutory proceedings, that I should not grant the stay order on the ground that I am not satisfied there is a serious issue to be tried.

52 Given this finding, it is not strictly necessary for me to consider whether the applicant will suffer detriment if the stay is not granted or whether the balancing of relevant considerations favours the grant of the stay. However, whilst I accept that the applicant is suffering detriment in being unable to pursue his chosen calling and is put to the extra expense and inconvenience of travelling to Ryde each day, in balancing the considerations I have come to the view that the balance is against granting the stay.

53 In relation to the applicant's alleged inability to go on to school grounds to deliver and pick up his partner's child, there was no evidence that the applicant was actually prohibited from going onto the relevant school grounds to deliver and collect the child and for my part I cannot see why he should face any difficulty in that regard.

54 In relation to LifeLine, as I understand it, the applicant works in a voluntary capacity as a telephone counsellor. In that capacity he is required to sign a prohibited employment declaration. Since signing the declaration the applicant worked one shift but since then his illness has prevented him from volunteering. Whilst there was no evidence that the applicant, having signed the declaration, would no longer be able to do the work of a telephone counsellor for Lifeline, one would expect that there is little point in having volunteers declare their status as to whether or not they are prohibited persons if no regard is had to that status. In balancing the considerations, however, the applicant's desire to perform voluntary work for Lifeline is outweighed by the other matters I have described.

55 Whilst I intend to make orders refusing the application for a stay I should make it clear that it remains open to the applicant to pursue his substantive application.

56 I make the following orders: 1. The application for an order under s 9(6) of the Child Protection (Prohibited Employment) Act 1998 is refused. 2. Section 9(8) of the Child Protection (Prohibited Employment) Act 1998 shall not operate to prevent the applicant from pursuing an order under s 9(1) of that Act in accordance with his application in these proceedings filed on 17 January 2003. 3. Costs are reserved. 4. The Industrial Registrar is directed to serve a sealed copy of these orders on the Commissioner of Police and also to include in that document the name of the person the subject of the orders. . ________________________________

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