"M" v Commission for Children and Young People

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J Monday 24 May 2004

"M" v COMMISSION FOR CHILDREN AND YOUNG PEOPLE (NO 2) Application under s 9 of the Child Protection (Prohibited Employment) Act 1998 INTERLOCUTORY DECISION [2004] NSWIRComm 127

1 The applicant in these proceedings has sought a declaration under s 9 of the Child Protection (Prohibited Employment) Act 1998 that the Act does not apply to him in respect of offences committed in Victoria in 1981. The offences involved two counts of indecent assault on adult females. The offences were dealt with by a 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.

2 In "M" v Commission for Children and Young People (2003) 124 IR 237 the Commission considered whether to grant an order staying the operation of a prohibition under the Act pending the determination of the matter. The Commission declined to do so for the reasons expressed in its decision. However, the Commission made it clear that in refusing the application for a stay it remained open to the applicant to pursue his substantive application.

3 In December 2003 the applicant made application for the Commission to consider whether certain matters referred to in the Commission's earlier decision were relevant to the Commission's consideration of whether a declaration should ultimately be granted under the Act. It was submitted that a pre-hearing in relation to these matters would assist in reducing the complexity and time that might otherwise be involved in the final hearing. The Commission agreed to this course.

4 The relevant legislation is s 9 of the Child Protection (Prohibited Employment) Act. It provides as follows: 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.

5 Ms P F Lowson of counsel for the applicant referred to s 9(5) of the Act, which lists the matters to be taken into account by the Commission in deciding whether to make the relevant order under the Act. Ms Lowson identified the facts in this case that are relevant to each of the paragraphs in s 9(5)(a) to (e) in a table as follows:

9(5)(a) The offence in relation to which this applicant is a "prohibited person" was not at the serious end of "serious sex offences" as defined by the CP(PE) Act. There were two incidents where the applicant grabbed adult females on the breast in full public view. An indicator of seriousness of the offence can be found in the penalty imposed which in the applicant's case was the imposition of a 12 month good behaviour bond the conditions of which were fulfilled leading to the dismissal of the charge. In particular, the court did not impose a conviction in relation to these matters. 9(5)(a1) The offences occurred in 1981, that is 23 years ago. Further, there is no suggestion of criminal conduct since that time. 9(5)(b) The applicant was 31 or 32 at the time the offences were committed. 9(5)(c) The victims were adults, not children. 9(5)(d) The applicant is currently 55 years of age. 9(5)(e) The matters outlined above describe the totality of the applicant's criminal record apart from some speeding offences.

6 The facts in the foregoing table relating to each of the criteria in s 9(5)(a) to (e) were in my opinion, correctly summarised by Ms Lowson and, accordingly, are relevant to the Commission's consideration. The question is whether, pursuant to s 9(5)(f), certain other matters referred to in the Commission's previous decision are also relevant to a consideration of whether the declaratory order sought by the applicant should be granted.

7 In this respect, counsel for the applicant referred to A v Commission for Children and Young People (2000) 104 IR 119 at [29] where Wright J, President observed that: Although past conduct may be relevant it is only relevant to the extent that it may assist that determination. Regard must also be had to possible future conduct. 8 Reference was also made to the judgment of Young CJ in Equity in Commission for Children and Young Persons v V [2002] NSWSC 949 where his Honour observed: 41. It follows that when approaching the construction of s.9 one must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of serious sex offence. 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.

9 The applicant referred to a report produced by the Child Protection Investigation Directorate at the New South Wales Department of Education and Training, the author of which was Judith O'Brien. The respondent in the earlier interlocutory proceedings relied upon this report. The applicant contended that the majority of matters set out in the report were not relevant to the Commission's consideration. In particular, it was submitted, unless the matters alleged gave rise to a suggestion that the applicant was a risk to children, those matters were not relevant to these proceedings. The matters referred to in Ms O'Brien's report and to which the applicant submits are not relevant are dealt with below.

10 In 1986 the applicant applied for a position with the Department of Community Services ("DOCS"). He was successful in obtaining the position but was asked to resign because the operations manager at DOCS at the time became aware of what he believed was the applicant's criminal history in Victoria involving abuse in 1981 of a seven year old male. This was clearly wrong.

11 The applicant contended that his non-disclosure of the 1981 offences was not a relevant consideration to whether he posed a risk to the safety of children. Counsel for the applicant submitted there was no evidence that the applicant was required to disclose the offence, and his dismissal in this regard may well have been unfair (a view I share). It was submitted that one of the purposes of good behaviour bonds is that traditionally such an outcome does not have the same stigma, opprobrium or requirement to disclose in employment situations as a conviction does.

12 The respondent submitted that although the non-disclosure by the applicant to DOCS in 1986 of the 1981 offences may not have been obligatory at the time, it was demonstrative of a lack of candour by the applicant regarding his offending history in the context of employment. The non-disclosure was not in the spirit of the questioning for the job position. The respondent submitted that incidents where the applicant demonstrated a lack of candour in relation to his offending behaviour in a context of employment with children was relevant to the assessment of risk.

13 It is common ground that the applicant was under no obligation to disclose the 1981 offences in seeking employment with DOCS in 1986. In the absence of any obligation to disclose the 1981 offences it is understandable that the applicant would not have volunteered the offences. The applicant was seeking employment that involved the care of wards of the state. However, the offences with which the applicant had been charged involved adult females. His application was made in circumstances where he had been placed on a good behaviour bond, the conditions of which had been fulfilled by him leading to the charges against him being dismissed; and, the applicant had no convictions recorded against him.

14 There was no suggestion that the applicant was asked questions in the course of his interview for the position with DOCS regarding his past conduct or that the applicant answered such questions untruthfully. He was under no obligation either by statute or the common law to disclose the 1981 offences: See the discussion in Hollingsworth v Commissioner of Police (No.2) (1999) 88 IR 282 at 311-321 where the majority (Wright J, President and Hungerford J) held at 321 that "The appellant did not have any obligation to be frank about matters which she believed might disqualify her from appointment other than to honestly answer questions put to her."

15 The respondent contended that incidents where the applicant demonstrated a lack of candour in relation to his offending behaviour in a context of employment with children was relevant to the assessment of risk. However, given that the relevant offences were committed against adult females and that the charges had been dismissed upon fulfilment of the bond conditions I do not consider there was any obligation, legal or otherwise, on the applicant to volunteer any information about the offences. The fact that he did not volunteer the information cannot be held against him and the non-disclosure of this information is not a matter that I consider to be relevant pursuant to s 9(5)(f) of the Act. I do not consider there is any real and appreciable connection between the applicant's non-disclosure of offences against adult females where the charges were ultimately dismissed, and the assessment of the applicant as to whether he is a risk to children.

16 It is to be noted that in June 1991 the applicant applied for approval to teach as a casual teacher with the Department of Education and Training. 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. 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. The applicant's application for permanent employment was approved. At the end of 1994 the applicant was appointed as a permanent school counsellor.

17 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. His case was scrutinised and he was returned to work, which involved working with children. The applicant was subject to a monitoring period of 12 months. That period passed without complaint and the monitoring was terminated.

18 A significant issue in the proceedings is whether, in deciding whether or not to make an order under s 9 of the Child Protection (Prohibited Employment) Act, the Commission should regard as relevant an incident that occurred in 1965 ("the 1965 incident") involving the applicant where a summons was issued by the Victorian Police "for indecent assault on female aged 7 yrs" but that the prosecution was not authorised and hence was not proceeded with.

19 The applicant's primary submission in this respect was that a matter that occurred when the applicant was a child and which did not give rise to any criminal prosecution, let alone an outcome involving any conviction, good behaviour bond or lesser penalty, should be totally disregarded for the purposes of these proceedings.

20 The applicant submitted that the disclosure of the information regarding the 1965 incident by the Victorian Police was wrongful, perhaps unlawful, and on that basis alone the Commission should not have regard to it.

21 The respondent, on the other hand, submitted the 1965 incident was probative to the assessment of risk and should be considered by the Commission as being relevant. Further, the respondent submitted, the onus was upon the applicant to establish that the information about the incident was improperly or illegally obtained and that the applicant had failed to discharge that onus. The respondent submitted that even if the Commission were satisfied the applicant had discharged the onus upon it in this regard the Commission should exercise its discretion to admit the evidence improperly obtained. The respondent referred to the provisions of s 138 of the Evidence Act 1995. The applicant submitted that as the rules of evidence do not apply in proceedings before the Commission, s 138 of the Evidence Act did not apply. This is true, but given the detailed arguments relating to the provisions of s 138 and how they might be applied, I consider it is appropriate in this case to apply the principles of that section in determining whether or not I should admit the information regarding the 1965 incident. Section 138 provides an appropriate benchmark by which to determine the admissibility of improperly obtained evidence. Section 138 is in the following terms: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

22 The first issue is whether the respondent improperly or illegally obtained the information about the 1965 incident and whether an admission made by the applicant about the incident was also improperly obtained. The answer to these questions is not readily apparent because the evidence is somewhat blurred. It is necessary to look closely at just what the evidence was.

23 In February 1993 the applicant was interviewed by Syd Smith, a director with the Department of School Education (DSE), as to the applicant's suitability for approval for a permanent appointment to the NSW teaching service. In the interview the applicant revealed the 1981 offences but made no mention of the 1965 incident. However, a note regarding the interview by Rex Gardner, acting director, personnel stated that: Reference was made to allegations regarding sexual assault on a minor made in an anonymous phone call to Mr Smith. [M] categorically denied that he had any such involvement. He was extremely concerned that such an allegation would be made.

24 There was no further evidence as to the allegations regarding "sexual assault on a minor" and it would appear that M's denial was accepted because his appointment was approved. There is no basis at all for believing that the information allegedly received by Mr Smith via an anonymous telephone conversation was the source of the DSE's information regarding the 1965 incident. 25 In January 1997 Detective Sergeant P P Clear of the New South Wales Police and a member of a "Joint Investigative Team" made a request for a criminal records check of the applicant and was advised by the Victorian Police, or at least the Central Records Branch, of the 1965 incident. I was not provided with any detail about this investigative team or the powers that it had to investigate matters. In March 1997 Detective Sergeant Clear recommended that the information obtained from Victoria, which included the 1965 incident and the 1981 offences be forwarded through the Child Protection Enforcement Agency to the New South Wales Department of School Education, Case Management Unit. Inspector Heslop approved this recommendation on 18 March 1997. As the applicant submitted, there was no reference in the recommendation of the need for confidentiality.

26 On 21 April 1997, Gary Dawson, Case Manager with the DSE's Case Management Unit, made a file note regarding his attempt to gain information about the applicant's criminal record in Victoria and was advised that "information cannot be released without the person's consent or via NSW criminal record check; however, it would be subject to ten (sic - the) same restriction." The manager of Victorian Central Records Branch advised Mr Dawson that "records about the 1965 matter would not have been kept as a prosecution did not go ahead" and that the manager would not be able to release information and particularly antecedent information about a criminal matter "because of consent issue".

27 Clearly, Mr Dawson knew about the 1965 matter when he contacted the Victorian Police in April 1997. This is confirmed by a briefing note of Mr Dawson dated 13 March 1997 where he referred to the "Central Coast Joint Investigative Team" having requested a criminal record check of the applicant which confirmed that "a prior [to the 1981 offences] 1965 charge of indecent assault on a 7 year old female which was not proceeded with by Victorian authorities" and by his investigation report dated 12 May 1997 where he stated: Wayne Barnaby, Manager, Victorian Central Records Branch confirmed on 21.4.97 that the information that the DSE had received from the NSW Police is the limit of information available from the Branch. He confirmed that there are no antecedent records for cases that do not go to prosecution or cases as old as the 1965 matter. He advised that the Branch is only able to provide information to the NSW or Victorian Police should the DSE require further information about [M].

28 I note that on a "CMU Allegation Form" it is recorded that the CMU was contacted by the estranged wife of the applicant who alleged that the applicant "sexually abused a child while living in Victoria - matter went to Court in Victoria - 'got off' due to family connections as his father held a senior position in the legal fraternity". The Form, however, was dated 25 June 1997; some four months after Detective Sergeant Clear made his inquiries in Victoria and three months, at least, after Mr Dawson had become aware of the 1965 incident.

29 Some time before 1 May 1997 (the letter is undated but the recipient made a handwritten note on the letter dated 1 May 1997) Clive Small, commander of Crime Agencies of the NSW Police Service, wrote to Ms G Shadwick, Assistant Director General, Case Management Unit, Department of School Education, to the effect that: · NSW police had received information from Victorian police about M, including indecent assault matters and that M "had been charged with child abuse offences in Victoria" (the latter statement being patently wrong). · Further information would have to be obtained directly from Victoria Police Central Records Branch. · Pursuant to earlier information, Mr Dawson had already commenced inquiries. · "the information must not be conveyed to a third party without the consent of the NSW Police".

30 The point of this letter remains unclear in circumstances where Mr Dawson, a case manager with the CMU, knew about the 1965 incident and had been seeking to get further information about it from the Victorian Police.

31 In a letter dated 3 March 2004 from Ms Marie Cheesewright, Team Leader, Public Enquiry Section, Criminal Records Branch, Victoria Police, the applicant was advised that: With regard to a National Police Record check for the purposes of employment in a child related field, the 1981 court hearing will be released. In relation to the 1965 matter, as per previous correspondence, you were not charged with any offence and this matter would not be released for employment purposes, including child-related employment. … Victoria Police applies strict guidelines to the release of criminal record information and will not release a person's record for the purposes of employment or licensing without the written consent of the individual concerned.

32 Internal guidelines of the Victorian Police relating to the release of information in connection with matters of a criminal nature to other law enforcement agencies were not in evidence. There is the letter of Ms Cheesewright to the applicant that indicates such information would not be released for employment purposes, including child-related employment, but that letter was written in 2004 and it does not provide satisfactory evidence as to what the Victorian Police guidelines or rules were regarding the release of this information in 1997.

33 It may have been the case in 1997 that information such as that relating to the 1965 incident could be passed on from the Victorian Police to the NSW Police consistent with guidelines then in place. However, when Mr Dawson contacted the Victorian Central Records Branch in 1997 he was advised that information relating to the 1965 incident could not be made available to him. It seems to me, therefore, that if the Victorian Police could not provide information directly to the DSE regarding the 1965 incident, the NSW Police should not have provided it to the DSE. I note that in 1991 and 1993 when criminal record checks were made, the Victorian Police provided only that information relating to the 1981 offences.

34 The inferences I am able to draw from the evidence is that in 1997 there were rules or guidelines governing the Victorian Police relating to the release of criminal record information. Those rules or guidelines provided that criminal record information would not be released to an employer without the consent of the individual concerned. Those rules may not necessarily have precluded the information being provided to another law enforcement agency. However, except for the provisions of the Commission for Children and Young People Act 1998, which I shall come to shortly, I can see no legal authority for the NSW Police having the right to pass on to an employer, confidential information of the nature of the 1965 incident obtained from another law enforcement agency where that other agency could not, or would not, provide such information to the employer.

35 In this respect I note that s 13 of the Criminal Records Act 1991 provides as follows: 13 Unlawful disclosure of information concerning spent convictions (1) A person who has access to records of convictions kept by or on behalf of a public authority and who, without lawful authority, discloses to any other person any information concerning a spent conviction is guilty of an offence. Maximum penalty: 50 penalty units or imprisonment for 6 months, or both. (2) It is not an offence for the officer in charge of the Criminal Records Unit of the Police Service to make information relating to a spent conviction available to a law enforcement agency or to the holder of an office prescribed by the regulations. (3) It is not an offence for an archive or library (or an authorised officer of an archive or library) to make available to a member of the public, or to another archive or library, in accordance with the normal procedures of the archive or library, material that is normally available for public use and that contains information relating to a spent conviction. (4) It is not an offence for a law enforcement agency (or an authorised officer of a law enforcement agency) in the discharge of its duties (or of the authorised officer's duties) to make information relating to a spent conviction available to another law enforcement agency or to a court in compliance with an order of the court. (4A) It is not an offence for a person to make information relating to a spent conviction available in accordance with section 38 of the Commission for Children and Young People Act 1998 .

36 As the applicant submitted, the 1965 incident was not even a spent conviction. It was a record of an incident that did not proceed to charge. It was information in respect of which the applicant had a right to have kept confidential. If the Criminal Records Act makes it an offence to disclose to any other person without the consent of the individual concerned any information concerning a spent conviction, it must certainly follow that the release of a prejudicial record of an incident that did not proceed to charge, is improper.

37 The respondent contended that s 38 of the Commission for Children and Young People Act 1998 permitted the disclosure by Police to the Commission for Children and Young People and to any employer approved by the relevant Minister, information relating to any relevant criminal record of persons or any relevant apprehended violence orders in respect of persons, for the purposes of employment screening. Section 38, prior to that Act being amended by the Child Protection Legislation Amendment Act 2003 (assented to on 10 December 2003), was as follows: 38 Notification of information relating to relevant criminal record (l ) The Commissioner of Police may, in accordance with this Part and the regulations disclose (or arrange for a member of the Police Service to disclose) to the Commission and to any employer (or employer-related body) approved by the Minister, information relating to any relevant criminal record of persons for the purposes of employment screening. (2) The Commission and any such approved employer (or employer-related body) may, in accordance with this Part and the regulations, disclose that information to other employers for the purposes of employment screening undertaken on their behalf by the Commission or approved employer (or employer-related body). (3) Information that may be disclosed under this section includes: (a) information relating to spent convictions despite anything to the contrary in the Criminal Records Act 1991, and (b) information relating to criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged. (4) This section does not limit the persons to whom, or the circumstances in which, the criminal record of persons may be disclosed apart from this Act.

38 There was no evidence that DSE or its successor was approved by the relevant Minister. But even if it were so approved, information relating to the 1965 incident is not a relevant criminal record as defined in the Commission for Children and Young People Act. The definition of "relevant criminal record" prior to the amendment referred to above was as follows: relevant criminal record means (subject to subsection (2)) the criminal record of a person with respect to an offence involving sexual activity, acts of indecency, child abuse or child pornography: (a) that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or (b) 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.

39 The respondent submitted that (references deleted): The definition [of relevant criminal record] does not restrict it to matters for which a conviction was recorded nor does it limit itself to police records where a criminal prosecution is proceeded upon. It is defined by two concepts: viz, the existence of an offence, and the existence of sexual activity. In relation to the latter, it is submitted the 1965 incident involved sexual activity. As to the former the respondent relies upon the admissions by the applicant to Dawson of conduct which constitute an offence. It understates the 1965 Police record to submit that it merely represents a recorded allegation. It ignores its adoption by the applicant in so far as his own recollections as recorded by Dawson Applying these, it is submitted that it is clear the intention of the CCYP Act is to include not only persons who were charged with an offence in the formal sense, but also persons in respect of whom other procedures for the commencement of prosecutions exist. This approach to the definition has both a logical persuasiveness, and promotes the protective objects/mandate of the CCYP Act. Support for this submission is to be found in the fact that the Police can disseminate information as to court orders which are not the subject of criminal charges. Section 33 defines relevant apprehended violence order as: relevant apprehended violence order means (subject to subsection (2)): (a) an apprehended violence order (other than an interim order) made by a court under Part 15A of the Crimes Act 1900 , or (b) an interstate restraint order (within the meaning of Part 15A of the Crimes Act 1900 ), whether or not it is registered under that Part, being an order made on the application of a police officer or other public official for the protection of a child (or a child and others). Orders of this nature are not criminal charges; they are orders within a legislative structure designed to deter people from carrying out certain inappropriate conduct or harming persons. Those orders may be imposed without any admission as to the facts in support of them.

40 The "offence" to which the respondent refers is, in my opinion, one that has been committed. So that the ability of an employer to access information relating to an offence is limited to an offence that has been committed, not information relating to circumstances, as the respondent would have it, that might constitute an offence.

41 As for the respondent's submission that the word "charges" in s 38(3)(b) of the Commission for Children and Young People Act should be interpreted broadly to include other commencement procedures for criminal prosecutions other than the charging process, I do not agree. The evidence was that the applicant was "not charged with any offence" in relation to the 1965 incident. I am in no position to question that evidence by taking a broad interpretation of the word "charged" in circumstances where no prosecution of the applicant was even authorised in relation to the 1965 incident. If no prosecution was authorised in the first place then there could have been no charge. It is impossible to come to the view, even on a broad interpretation, that a criminal charge was laid but "not heard, proven, dismissed, withdrawn or discharged."

42 As I have already noted, the Commission for Children and Young People Act was amended in December 2003 by the Child Protection Amendment Act. One of the amendments was to the definition of "relevant criminal record". The amended definition is in the following terms: relevant criminal record means (subject to subsection (2)) the criminal record of a person with respect to an offence involving reportable conduct or any sexual offence, or an offence an element of which is an intention to commit such an offence, or an offence of attempting, or of conspiracy or incitement, to commit any of the preceding offences: (a) that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or (b) 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, and includes the criminal record of a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000 , but only in relation to registrable offences within the meaning of that Act.

43 "Reportable conduct" is defined as follows: reportable conduct means: (a) any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence), or (b) any assault, ill-treatment or neglect of a child, or (c) any behaviour that causes psychological harm to a child, whether or not, in any case, with the consent of the child. Reportable conduct does not extend to: (a) conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards, or (b) the use of physical force that, in all the circumstances, is trivial or negligible, but only if the employer is an agency to which Part 3A of the Ombudsman Act 1974 applies and the matter is to be investigated and the result of the investigation recorded under workplace employment procedures, or (c) conduct of a class or kind that is exempted from being reportable conduct by the guidelines under section 35.

44 In amending the Commission for Children and Young People Act the Legislature was obviously seeking to broaden the scope of what constituted a relevant criminal record for the purposes of s 38 of that Act. In my opinion, the amendments strengthen the view that "offences" and "charges" as those words are used in s 38, should not be given the broad interpretation contended for by the respondents. It may well be the extended definition of "relevant criminal record" (post-December 2003) would extend to the 1965 incident but I note that whilst, subject to any regulations, the amendments extend to matters arising before the commencement of those amendments, the amendments do not affect any action that is or has been taken by the Commission or by an employer, or to any employment screening, in relation to a matter notified to the Commission before that commencement. Therefore, the amendments do not apply in this case.

45 I conclude that on the balance of probabilities, the information relating to the 1965 incident obtained by the DSE from the NSW Police was in consequence of an impropriety, namely, that it was improper for the NSW Police to obtain the information from the Victorian Police and then to provide it to an employer for the purpose of employment screening in circumstances where the employer could not obtain the information directly from the Victorian Police without the consent of the person concerned.

46 Having obtained the information relating to the 1965 incident as a consequence of an impropriety, Mr Dawson raised the incident in an interview with the applicant on 5 May 1997. There was no record of the interview and there was no record of whether M was given, and availed himself of, an opportunity to verify the contents of any interview, although it would appear that the applicant's solicitor accompanied him. According to the applicant's evidence before this Commission in March 2003, it was Mr Dawson who first raised the 1965 incident at the interview. Consequently, in the course of the interview, the applicant allegedly made certain statements and admissions regarding the 1965 incident, namely, that: · 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 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.

47 In his evidence before the Commission on 10 March 2003 the applicant admitted that "in the context of adolescent sexual exploration I went with a girl to a house next door and my recollection was that we were both naked." The applicant said he was not sure of the girl's age but he accepted what he had done was wrong and "to this day feel[s] badly about [the incident]." His evidence was not inconsistent with what is set out in the immediately preceding paragraph. It should be stressed however, there was no evidence of any sexual assault.

48 The admissions by M to Mr Dawson in May 1997 were improperly obtained. That the applicant made the admissions in the presence of his solicitor does not lead one to the conclusion that the admission was properly obtained. The applicant was responding to questions regarding confidential information obtained by Mr Dawson, and hence the DSE, as a consequence of an impropriety. The information regarding the 1965 incident should not have been made available to the DSE without the applicant's consent, which he did not give. The applicant should not have been put in the position of having to explain himself in relation to an incident of which the DSE should not have been aware.

49 The information that was obtained by the DSE as a consequence of an impropriety and the improperly obtained admission of the applicant were then obtained by the respondent by way of a summons from the successor to DSE, the Department of Education and Training ("DET"). That the information and admission came to the respondent by way of a summons does not alter the fact that it was obtained improperly. The information and admission in the hands of the respondent remained tainted and pursuant to the provisions of s 138 should not be admitted into any consideration relevant the making of an order in this matter under s 9 of the Child Protection (Prohibited Employment) Act unless the desirability of admitting the information and/or admission regarding the 1965 incident outweighs the undesirability of admitting it, which brings me to the next series of considerations.

50 Once the improper conduct is established the onus falls upon the respondent to persuade the Commission that the information and/or admission should be admitted.

51 The considerations listed in s 138(3) of the Evidence Act must be taken into account in applying the discretion under s 138(1) of that Act: R v Helmhout [2001] NSWCCA 372 at [16]. Section 138(3)(a) requires a court to take into account the probative value of the evidence. "Probative value" is defined in the Dictionary to the Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue". The fact in issue in this case is whether the applicant is a risk to children.

52 In respect of s 138(3)(a) the applicant contended that: (i) the record of it is dated 1965, nearly 40 years ago; (ii) the first time the applicant was required to recall any details was in 1997; (iii) in his evidence before the Commission on 10 March 2003 M stated that even in 1997 Mr Dawson had put a number of matters to him (the source of which is unclear) - as a result M's already necessarily limited account is possibly tainted by matters having been suggested to him by Mr Dawson; (iv) even if the complainant could be located, it is unlikely that her recall would be clear or accurate; (v) the details recalled are sketchy and inconsistent with the limited notes in the police record; (vi) although there is no evidence about why the matter was not proceeded with, one explanation is that it did not amount to a criminal offence; (vii) any attempt to initiate proceedings based on the incident may well be the subject of a successful application for a permanent stay on the basis of the elapse of time and intervening inaction; (viii) on the one hand the evidence is significantly prejudicial to the applicant, and on the other it is not obvious how the limited details of the incident can usefully assist the Commission is assessing the question of risk to children. This is particularly so in circumstances where the applicant was himself a minor at the time of the alleged incident and where there is no other report of sexual misconduct involving children since 1965, notwithstanding hat the applicant has worked closely with children for most of the last 15 years.

53 For its part, the respondent submitted that the 1965 incident was probative to the assessment of risk because: (a) it is behaviour of a sexual nature towards a child; (b) it is behaviour which is criminal; (c) it is behaviour which is admitted; (d) it is behaviour which precedes the index offence, and as such, is relevant for any psychological assessment of risk both statistically, to identify the risk group into which the applicant falls; and clinically, as to whether, in that group, he is part of the small percentage of offenders likely to reoffend, or not; (e) it counterbalances the submission by the applicant that it is relevant to s9(4) to have regard to the penalty imposed for the index offences as indicative of them being at the serious end of "serious sex offences" within the Act. It counterbalances the submission in that it allows the Commission to put that submission into a context. That context recognizes that the Prahran Magistrates' Court did not, and was not permitted, to have before it evidence of the 1965 incident. Had the applicant's conduct for the 1965 incident been before that sentencing court (E.g. as part of a history of sexual conduct by the applicant to a psychiatrist viz Dr Richards), the deferred sentence would not have been imposed. This is particularly so given the applicant's account of the index offences as being isolated offences attributable solely to the stressors existing in his life at the time, and not a continuing course of sexual conduct. The absence of prior criminal antecedents was relevant to show that the index offences were out of character. Conversely, an offender with antecedents may demonstrate that the commission of the index offences was not uncharacteristic aberrations, thereby disentitling the offender to leniency: Postiglione v R (1991) 24 NSWLR 584; Ryan v R (2001) 206 CLR 267; (f) If the offender does not have a lack of criminal conduct, although never convicted of that conduct, the good character of the offender is not a mitigating circumstance to be taken into account on sentence: Weininger v R (2003) 196 ALR 451, in which the applicant appealed against sentence arguing that his character went to - absence of previous convictions and whether he'd previously engaged in other criminal conduct. The High Court has said in Weininger v R : [26] The appellant's out of court assertions that this was a "one off thing" were tendered to persuade the judge that he had not previously engaged in drug importation or money laundering… [27]…the question for the primary judge was, what was known about the appellant's character and antecedents. g) it is evidence to the contrary of that which is deposed to by the applicant in his affidavit. If the applicant is to continue to assert, as a fact that he has no other adverse notifications or allegations of a sexual nature, for children, it is probative to consider the 1965 admitted sexual conduct to rationally affect the assessment of the probability as to whether he is a risk to children.

54 In considering the issue of probative value, it is necessary to look at both the information the respondent received from DET via the NSW Police and the admission made to Mr Dawson in the interview with the applicant.

55 The evidence indicates the applicant did have an encounter of a sexual nature with a young girl in 1965 when he was about 16 years of age; the applicant acknowledged this to have been the case in response to the matter having been raised in May 1997 by Mr Dawson. The applicant's solicitor was present at the time. However, whilst the evidence is that a summons was drawn up and it contained allegations of indecent assault, in light of the evidence of the applicant before this Commission there is no basis for accepting that any indecent assault occurred. The Victorian Police interviewed the applicant about the incident but he was not charged with any offence, as some of the information emanating from Detective Sergeant Clear suggested.

56 Whilst I accept that the 1965 incident, as the applicant described it, could rationally affect the assessment of the probability of whether the applicant is a risk to children, I have come to the view that the probative value of this evidence is quite limited. 57 Section 138(3)(b) requires a court to take into account the importance of the evidence in the proceedings. The 1965 incident is but one issue the Commission is called upon to consider but given its limited probative value it does not hold a place of central or even significant importance.

58 Section 138(3)(c) requires a court to consider the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding. In these proceedings the Commission is required to consider whether the facts enable it to conclude that the applicant is not a risk to children. In A v Commission for Children & Young People (2000) 104 IR 119 Wright J, President said of the purpose of the Act at [31]: 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, to their employers, and to eliminate to the greatest extent possible the risk that such persons might pose to children from any institutional contact or relationship they may have with them.

59 The nature of the proceedings, which attract strong public interest considerations, tends to support a conclusion that relevant evidence of sexual conduct with children that has come to the notice of authorities should be admitted, notwithstanding the evidence may have been improperly obtained.

60 Section 138(3)(c) requires a court to take into account the gravity of the impropriety. The passing on of the information by the NSW Police to DSE was, in my opinion, seriously improper, particularly when it is considered that the information obtained from the Victorian Police was described as revealing the applicant had been charged with child abuse. The applicant was not charged and there was no evidence of child abuse. The information regarding the 1965 incident should not have been made available to the DSE without the applicant's consent. The gravity of the impropriety supports a decision not to admit the information regarding the 1965 incident. The Commission should not be seen to be endorsing the improper release and use of confidential information in circumstances where it was accompanied by a degree of recklessness to the extent that the incident was misdescribed to the applicant's detriment and where there was a distinct lack of regard for the confidentiality of the information relating to the incident.

61 Section 138(3)(e) requires the court to consider whether the impropriety or contravention was deliberate or reckless. As I have already stated, I consider there was a degree of recklessness, although it could not, by any means, be described as serious or gross. It appears to have been assumed that the applicant was charged with an offence amounting to child abuse arising out of the 1965 incident and that, therefore, the information could be made available to an employer for the purpose of employment screening under s 38 of the Act. The NSW Police knew that the summons relating to the 1965 incident was not authorised and consequently no charge within the meaning of s 38 of the Commission for Children and Young People Act could have been laid. Nevertheless, the information was passed on to the DSE in March 1997 without any warning or caution at the time regarding the need for confidentiality. I consider that in passing on the information to DSE there was a careless disregard on the part of the NSW Police for the rights and interests of the applicant. I note that Commander Small, in his undated letter to Ms Shadwick, which she noted on 1 May 1997, warned of the need for confidentiality. The warning, in my opinion, was very belated.

62 Section 138(3)(f) requires a court to consider whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights. The applicant submitted that: The following inconsistencies arise: (i) Article 9(2) - "Anyone who is arrested …shall be promptly informed of any charges against him." Here the CCYP is claiming (in proceedings on 31 March) that the 1965 information reflect an offence, yet the imprecise 1965 information, combined with M's different recollection, does not permit identification of a "charge". Even this could be done retrospectively, the decision not to charge at the time should not be looked behind. (ii) Article 14(1) reflects the right of juveniles not to have criminal matters made public. This right will be further undermined in circumstances where the respondent has treated the 1965 matter as a criminal offence. (iii) Article 14(2) names the right to a presumption of innocence until proved guilty according to law. No such proof or process exists in relation to the 1965 information. (iv) Article 14(3) repeats the right to be informed promptly of the charge. Because M was not charged in relation to the 1965 information he has been deprived of all of the rights set out in Article 14. (v) Article 17 - "No one shall be subjected to arbitrary or unlawful interference with his privacy…nor to unlawful attacks on his honour and reputation" and "Everyone shall have the protection of the law against such interference or attacks".

63 I do not accept that the inconsistencies contended for by the applicant exist except as to article 17 where I do consider the applicant's privacy has been interfered with and his honour and reputation has been the subject of improper attack by the release of the information regarding the 1965 incident.

64 Section 138(3)(g) requires a court to take into account whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention. There was no evidence in respect of this matter.

65 Section 138(3)(h) requires a court to take into account the difficulty (if any) of obtaining the evidence without impropriety or contravention of Australian law. The information regarding the 1965 incident was obtainable with the applicant's consent. The applicant was not asked for his consent.

66 The question of whether I should admit the information regarding the 1965 incident is not an easy one to resolve. I am troubled by the material that at the time of the 1965 incident that the applicant would have been about 15 or 16 years old and the young girl who was involved was allegedly only seven. Nonetheless, I have decided that, on balance, the 1965 incident should not be a consideration in determining whether or not to make an order under s 9 of the Child Protection (Prohibited Employment) Act. I consider it would be unfair and significantly prejudicial to the applicant to allow the material in. The incident was nearly 40 years ago when the applicant was a juvenile and no charges were laid. I think it has to be borne in mind that the 1965 incident was the subject of a departmental disciplinary investigation and a review by the Slattery Royal Commission resulting in 12 months' monitoring of the applicant. The monitoring was completed without incident and the matter closed. Further, there is no other report of any substance of sexual misconduct involving children since 1965, notwithstanding that the applicant has worked closely with children for most of the last 15 years.

67 In "M" v Commissioner for Children and Young People the Commission observed at [28] that: 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.

68 A mother of a student, one Ms Donna Roberts, made the allegations regarding the request to pose for the photos. The applicant submitted that in relation to the allegations: (i) the matter was the subject of investigation by the Department of Education and Training in 2000 - that is, at a time subsequent to the Slattery Royal Commission when the Department of Education and Training had introduced significant investigatory processes to deal with allegations of this sort. In circumstances where the matter was investigated and found to be unsubstantiated then, unless the CCYP can point to specific ways in which the investigation was flawed, then the matter should be considered closed. (ii) It is axiomatic that allegations that have been properly investigated and found unsubstantiated cannot be relevant to the question of whether a person poses a risk to children. To find otherwise would be to subject a person to a never-ending risk of ongoing scrutiny of historic allegations that become more and more difficult to investigate and recall with the passage of time. (iii) Even if the Commission were to look behind the finding that the allegations were unsubstantiated and examine the evidence, it would reach the same conclusions as the investigation - that is, the allegations are unsubstantiated. (iv) Unsubstantiated allegations are not relevant to the question of whether the applicant poses a risk to children.

69 On the other hand, the respondent submitted (references to evidence deleted): [T]he applicant overstates the matter as being "properly" investigated, if it is to be inferred from that phrase that it was "fully" investigated. The evidence discloses that the complaint was referred to both the Industrial Relations Service and the Child Protection Enforcement Agency. The IRS delegated the investigation to the school principal. The principal was unable to verify the incident and the applicant denied it. The principal stated that he was sure the incident, or an incident, had taken place but there was no corroborating evidence. The IRS was unable to caution the applicant as recommended by the principal, as the incident was unable to be proven. Accordingly, strategies were suggested to the applicant to reduce the risk of such allegations arising again. The finding that the allegations were unsubstantiated is more correctly a finding that there was no corroboration for the allegation. The respondent submits that it is a question of weight to be attached to that evidence.

70 With some reluctance, I propose to admit the material relating to the Roberts' allegations. It will be, as the respondent submitted, a question of what weight I might attach to the material, not in isolation but when it is considered with other relevant evidence.

71 The evidence relating to the applicant's "over-involvement" in cases was summarised by the respondent as follows (references to evidence not included): (a) Brickedike Case - 18 December, 1996 - in which (i) the applicant insisted on a notification against the mother of Miss Brickedike such that DOCS treat the matter as a child protection matter rather than a family support case; (ii) Miss Brickedike was an adolescent female student of Brook Avenue Public School at which the applicant was a counsellor; (iii) The applicant put forward to DOCS a female acquaintance, Billie Jean Page as a foster carer for Brickedike; (iv) The applicant maintained contact with Brickedike throughout the Christmas holiday period for 1996/1997 and organized respite care despite DOCS not seeking alternate placement; (v) The applicant approached Ms Page to organize respite care for children, independent of DOCS.

(b) O'Brien Report: Reference is made to: (i) Home visits outside schooldays; (ii) Sitting in a sexual assault interview with DOCS officers; (iii) Visiting families in the evening, counselling children about access arrangements when that child is not a student of the school at which he is a counsellor.

72 The applicant submitted that even if the applicant was "over-involved" that does not demonstrate any risk to children; it was a matter appropriately dealt with through management of the applicant's work, as was recognised by the Department in 1997. Nevertheless, I accept the respondent's submission that the material relating to "over-involvement": [I]s evidence of an expressed intention by the applicant to involve himself in a private context with school children, beyond the professional context, about highly sensitive issues. Such a confidential context is unable to be effectively monitored, as to do so would compromise the confidentiality of the counselling.

73 I propose to have regard to this evidence in the same way as the evidence relating to the Roberts' allegations.

74 At [29] to [31] of its judgment in "M" v Commission for Children and Young People the Commission noted that: 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.

75 The applicant submitted that none of these incidents and another involving a threat by a father against the applicant and a Mr Edwards was relevant to a consideration of whether the applicant is a risk to children. These incidents lie very much on the outer edge of relevance but I am concerned that I should not exclude them at this stage because I wish to hear in more detail in any substantive hearing what the parties have to say about whether or not these incidents, the Roberts' allegations and the alleged "over-involvement" issue constitute a pattern of conduct about which I should be concerned or are merely coincidental or isolated episodes that carry no weight and bear no relevance to the issue I am required to determine.

76 Judith O'Brien is an investigation officer with the CPID although what qualifications and experience she possesses I do not know. In "M" v Commission for Children and Young People reference was made to Ms O'Brien's report into the applicant. Having had regard to all of the incidents referred to in this decision Ms O'Brien assessed the applicant's risk to children as "significant".

77 The applicant submitted that a substantial part of the O'Brien report should not be the subject of evidence in the final hearing of this application and should be disregarded as irrelevant to the question of risk to children. It was submitted that: Ms O'Brien mixes up a number of different matters in this very prejudicial summary of matters that have never been the subject of specific allegation nor of disciplinary procedures. And that: Ms O'Brien's apparent prejudice in this regard is also demonstrated in her comments concerning the applicant's friendship with women who are "unempowered". A similar theme appears in other reports concerning the applicant's first two relationships involving women with disabilities. In relation to those matters (i) neither the applicant's wife nor the woman with whom he subsequently had a relationship had children at the time that he entered those relationships. (ii) In relation to his current relationship the woman does have children. This is not an unusual consequence of relationships entered into later in life as the older one is the more likely women with whom one has relationships already have children from another relationship. (iii) There are many potential reasons for him sharing his home with Ms Collins. To characterise it without more as some sort of exploitative pattern of behaviour is without foundation. (iv) Similarly Ms O'Brien is mistaken when she writes "he calls the police if they make allegations when they are intoxicated." The reasons for the applicant calling the police were unconnected to the allegations themselves. Without the police being involved the allegations would have remained private matters put in the context of a drunken or drug induced state. Baseless accusations in those circumstances are not unusual. There is no suggestion that the allegations have been repeated by the women either to the applicant or to anyone else when not intoxicated.

78 The respondent submitted that the O'Brien report should be admitted in so far as it provides a chronological account of the history of the applicant's notifications and investigations. I will admit it on that basis. If any more is sought to be made of the opinions expressed by Ms O'Brien in her March 2002 report then the respondent will need to consider calling Ms O'Brien to give evidence.

79 In "M" v Commission for Children and Young People the Commission stated at [44]-[45] of the decision that: 44 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.

80 Discounting the 1965 incident because of the conclusions earlier reached, I remain somewhat concerned about the applicant's failure to be completely forthright and honest about the other allegations. They did involve matters connected with children and they were reported to the Police, albeit by the applicant himself. The fact that he reported the incidents does not mean it was unnecessary for him to have referred to them in his evidence given the nature of these proceedings. Whilst the Commission harbours some doubt about their relevance after having heard the parties on that question, the Commission considers them of sufficient note as to want to hear more in the substantive proceedings. Similarly, the Commission wishes to hear more on the applicant's failure to refer to these matters in his evidence.

81 The applicant submitted that: [T]he Commission appears to have accepted that in applications of these sorts it is necessary for the Commission to be provided with evidence as to the applicant's current mental state. The applicant submits that, to the contrary, the fact that there may be evidence in relation to the applicant's depression does not elevate his mental state to a level that is relevant to the Commission's consideration of the matters herein. In particular there is no evidence to suggest that the applicant's current depression nor his depression in 1981 are relevant to the question of whether he is a risk to children. The Commission is not asked in these proceedings to consider the applicant's general health, or his even fitness for duty, but only those matters that are relevant to the question of whether the applicant poses a risk to children. In the absence of any such connection between his depression and any risk to children, that issue is not relevant to the Commission's deliberation.

82 As it was noted in the earlier decision at [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.

83 Whether or not the applicant wishes to rely in the substantive proceedings on evidence as to his mental state is a matter for him. I note, however, what I said in the earlier decision, namely, "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."

84 Finally, the applicant submitted: The applicant submits that there are a number of matters which are relevant to the Commission's consideration including the significant amount of contact that the applicant has with children in his workplace with no allegation of inappropriate conduct; the applicant's excellent work history involving contact with children since 1991; and the character witnesses who will support the applicant in the final hearing.

85 I accept that the matters identified by the applicant as being relevant should be taken into account in the substantive proceedings.

86 The outcome of this application by the applicant is that of the matters referred to in "M" v Commission for Children and Young People, two of those matters are considered to be not relevant to the Commission's consideration of whether a declaration should ultimately be granted under the Act. These two matters are: (i) the non-disclosure by the applicant to DOCS in 1986 of the 1981 offences; and, (ii) the 1965 incident.

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