"R" v New South Wales Commission for Children and Young People. - [2002] NSWIRComm 101 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

"R" v New South Wales Commission for Children and Young People.

[2002] NSWIRComm 101

Industrial Relations Commission (NSW)|2002-07-01|Before: Haylen J, Mr P

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Haylen J, Mr P

Source

Original judgment source is linked above.

Judgment (166 paragraphs)

[1]

CITATION : "R" v New South Wales Commission for Children and Young People. [2002] NSWIRComm 101 PARTIES : "R" v New South Wales Commission for Children and Young People. Application under s 9 of the Child Protection (Prohibited Employment) Act 1998 FILE NUMBER: IRC 5978 of 2001 CORAM: Haylen J Child Protection (Prohibited Employment) Act, 1998 - application for order under s 9(1) - scheme of Act - statutory construction - application for order under s 9(1) - whether two stage process requiring finding of no risk to safety of children as first step - whether conditions imposed under s 9(9) may be used in forming assessment of risk under s 9(4) - statutory construction - meaning of "risk" in s 9(4) - meaning of "primarily" in s 3(a) - use of extrinsic aids to construction - relevance of cognate legislation - whether statute creates a presumption of risk which may be rebutted by an applicant - nature of onus on applicant to make out a case for order to be made - role of Briginshaw test - application of s 140 Evidence Act - nature of discretion available under s 9(1) - whether order should be made where provisions of s 9(4) satisfied - legislation balances important rights - right to freedom from risk - right to work. CATCHWORDS : Child Protection (Prohibited Employment) Act 1998 - consideration of merits of application - relevance of minimisation of offence - whether character evidence relevant - relevance of psychiatric evidence in risk assessment - risk of re-offending different to statutory test of risk to safety of children - psychiatric evidence of low risk - age of student population under care and supervision of applicant - limited nature of contact with children - whether more restricted order warranted - applicant liable to lose employment as result of application of Act - applicant acknowledges wrongdoing - history of offence considered - extensive investigation by Childrens Commission - no other convictions - no offence or sexual offence for 10 years - s 9(4) satisfied - further submissions requested regarding terms of order to be made. Child Protection (Offenders Registration) Act 2000 s 16 Child Protection (Prohibited Employment) (No.3) Act 1998 Child Protection (Prohibited Employment) Act 1998 s 3 s 3(a) (vii) s 5(1) s 5(3) s 6 s 6(1) s 7 s 8(1) s 9 s 9(1) s 9(3) s 9(4) s 9(5) s 9(5)(f) s 9(6) s 9(7) s 9(9) s 10 s 37(6) (a)- (d) Commission for Children and Young People Act 1998 s 11 s 14A LEGISLATION CITED : s 33(1) s 34 s 37 s 37(6) Crimes Act 1900 s 61M(1) Evidence Act s 140 Interpretation Act 1987 (9)(1) Ombudsman Amendment (Child Protection and Community Services) Bill No 3

[10]

4 At the time of hearing the application, although there was initially some doubt raised by the Commission for Children and Young People (the respondent Commission) it was ultimately uncontested that there was evidence that the applicant: was an employee who had been convicted of a serious sex offence, was a person who was employed in child-related employment; and was an employee who was liable to be dismissed from his employment under the provisions of the Prohibited Employment Act. The respondent Commission initially raised concerns whether the applicant was engaged in child-related employment as defined by the Prohibited Employment Act, in circumstances where the Act in s 3 defined "child" to mean "a person who is under 18 years of age". The TAFE Commission of New South Wales belatedly sought leave to intervene in the proceedings, which was not opposed and which was granted, in order to enable evidence to be called as to the nature of teaching and teaching services provided to young people under the age of 18. Mr Michael Ryan, the Human Resources Manager, South Western Sydney Institute of TAFE, swore an affidavit which was read in the proceedings, gave oral evidence and was cross-examined by the parties. He confirmed that the age of students at the South Western Sydney Institute could range from 14 years of age to adults of mature age both male and female. He said that all campuses of the South Western Sydney Institute had facilities for vocational education and training in school programmes which involved male and female students ranging in age from 15 upwards and that some campuses had facilities for vocational, educational and training in school programmes in Business Services. He said that other facilities had younger students in Youth at Risk Programmes involving students as young as 14 years of age. A statement of duties for the position of teacher in Business Services was annexed to Mr Ryan's affidavit and Mr Ryan stated that the range of duties could involve Mr "R" in teaching in the classroom, small groups and at times the provision of individual tuition. Mr "R" would be unsupervised in the performance of most of these duties. He stated that the Department of Education and Training had classified teachers in TAFE as being in child-related employment. Mr "R" was presently on alternate duties as a temporary project officer in the Student Services and Admissions Unit but his classification remained as that of teacher of Business Services. He noted that Mr "R"'s temporary employment as a Project Officer would cease "in the near future as work has decreased in that area". Mr Ryan then stated: When [Mr 'R's'] temporary employment ceases it will be necessary to give consideration to his future employment. As a prohibited person [Mr 'R'] cannot be employed in child-related employment in the absence of a declaration from the Industrial Relations Commission or the Administrative Decisions Tribunal. As a consequence Mr Ryan said that South Western Sydney Institute of TAFE can only employ Mr "R" as a teacher, or be faced with either finding him alternative employment or, absent a declaration from the Commission, termination of his employment. The problem in finding any alternate work was the need to find work for Mr "R" that was not child-related employment within the meaning of the Prohibited Employment Act. There appeared to be a real doubt as to whether such employment could now be found for Mr "R".

[12]

6 Before the Local Court in May 1993, were not only the statements of the victim, her mother and Mr "R" but also a number of documents that warrant some mention. One such document was a handwritten letter from Mr "R" to the mother of the victim, with whom he was having a sexual relationship. This letter is dated 28 July 1992 and on the Facts Sheet before the Local Court it was recorded that this was the last date of complaint by the victim, and apparently follows upon the victim's complaint to her mother and the mother's action in raising the allegation with Mr "R". In that letter Mr "R" speaks about the stresses and pressures in his life and talks about issues beyond his control. He stated: … Other issues I can do something about - this is one of them. This morning I arranged (pulled a few strings) at very short notice to have professional counselling on the issues. The counselling will be ongoing, it will be painful, embarrassing, probably humiliating and above all else it is essential. And it must occur for the sake of myself and others. In the meantime I think it extremely unwise that the Monday arrangements continue as they are. The one thing I look forward to each Monday evening is seeing you, and if that can occur, great. I am sitting here trying to find the words to tell you how I feel (perhaps the handwriting is a give away). Hannibal Lecter in "Silence of the Lambs" is a fair analogy. Like a leper, an outcast. A criminal. Suicidal (not that brave or stupid). In the meantime, the counsellor (saw her this morning) has told me not to discuss the issue with anyone. Today's session was dreadful and I was advised not to go back to work, but what can one do … has six hours teaching and four hour tutorial and I am the Head Teacher who must cover classes wherever possible. If you want to call off Friday evening ( …rang) leave a message on the answering machine. I don't know that I can face you or anyone else right now, hence the cowardice of this letter and the absence of face-to-face contact. I love you.

[13]

7 Also tendered in those proceedings was a report from Dr Robin Andrew Haig, a consultant psychiatrist, dated 23 March 1993. Dr Haig's report had been obtained by solicitors acting for Mr "R" in the proceedings before the Local Court. Dr Haig noted that, following the allegations of assault of a 13 year old girl, Mr "R" had suffered considerable anxiety and stress. Dr Haig noted: He had felt that he could not cope with the prospect of being interviewed by the police, was tearful, not concentrating on any studies, experiencing brief sensations that people were looking at him and accusing him of being a child molester. He was also experiencing suicidal feelings, anorexia and insomnia, only sleeping for four hours per night. He had made an ill-conceived attempt to put a handkerchief around his neck and tighten it in a distressed state of mind when he was feeling suicidal. … After noting matters concerning Mr "R"'s early life which involved his relationship with his parents and the onset of a tendency to stammer, especially when anxious, and attempts by an older boy when he was five years of age to interfere with him sexually, Dr Haig then stated: He worked in personnel management, being in Telecom as a Personnel Manager for ten years and has been teaching in TAFE colleges for the last 13 years. He is currently the Head Teacher at … TAFE which involves considerable administrative and teaching duties. He has also additional academic qualifications. He has previously enjoyed his classroom work, in spite of his stutter, which is more containable in this situation. He is a trained Lifeline counsellor and has been on the Board of the Cottage Family Care Association for five years. Dr Haig noted that he lived with his wife and three children aged between seven and 13 but that the marriage of 18 years' duration appeared to have deteriorated in recent years, in part because of Mr "R"'s tendency to work excessively long hours, spending three nights a week teaching and one night at University. His sexual life with his wife had deteriorated considerably in the past two years. He had described his relationship with his children as good and, while he was very fond of them, he accepted that they had become distant as a result of his tendency to over work. In relation to diagnosis, Dr Haig said the following:

[15]

8 A further statement from the victim's mother which was before the Local Court noted that on 10 December 1992 Mr "R", by previous arrangement, came to her home to discuss Mr "R"'s situation and the allegations made against him by her daughter. In the course of that discussion, she noted in her statement that Mr "R" had admitted to the offence saying the following: I have committed an act that I abhor and have become a person I have preached against for years and that is a child molester. I have to live with this fact for the rest of my life and my deepest regret is that you two do also . In answer to questions raised by the victim's mother, Mr "R" told her that he had not admitted these things to his solicitor nor to his own minister and that he thought she would be the only one he would admit them to. They then had a conversation about their personal relationship and his own home life. 9 In his oral evidence in the present proceedings, Mr "R" was asked about the circumstances in which he did change his plea to guilty before the Local Court. Mr "R" said: There were a number of factors which led to that decision. I could not live with myself knowing that I was lying. I could not live with myself knowing that I was pleading guilty to something that I had done. I could not live with my conscience knowing that I was doing something that was completely against everything I had stood for, most, if not all, of my life. I decided to change my plea because I was being supported by people that I was misleading very wrongly and badly and it was grossly unfair on those people, it was grossly unfair on the person on whom I committed the offence as well in order to plead not guilty to something that I had done. On about 3 March 1993, Mr "R" called a meeting between his wife, his father and the minister of his local church. He asked them to come to his home because he wanted to discuss the matter with them and to advise them that he was changing his plea. While this matter was evidence on his application under the Act, it does not appear to have been a matter in evidence before the Local Court in 1993.

[17]

11 On Mr "R"'s behalf, a number of references and testimonials to his previous good character were presented to the Local Court. One reference from a Meals on Wheels Co-Coordinator, who had been his student and who was married with five children, spoke of Mr "R"'s attributes as a teacher and the apparent Christian values which they both shared. She stated that she was aware of the reasons why the reference was required and, while 'disheartened at the cause', was convinced that her judgment as to Mr "R"'s worth was correct. She mentioned being very concerned about the stress Mr "R" appeared to be under in the previous year, 1992, and his job keeping him away from his children and partner at hours that are most important to the family, thus causing great conflict for him, especially knowing that to do what he does best means that he had to be away from his family. In her view, Mr "R" gave of himself without thought of cost to his own well being. Another reference was from a woman whose daughter and son had been involved in the Church children's playgroup. She observed Mr "R" to be an honest and hard working man whose commitment to work extended to many late nights. He was always willing to take on additional responsibilities at work and to further his career had undertaken post-graduate studies in topics directly related to the main theme of his work - people and their relationships. Despite the heavy work load, her observation was that Mr "R" enjoyed his family and had always been very willing to tend to both his own and her own children whenever his obligations permitted. She then stated: I have no hesitation in placing the care of either my twelve year old daughter or my seven year old son, in Mr "R"'s (hands). We have an excellent co-operative "child - minding" system between the two families. The reference concluded as follows: I wish to bring to your attention the fact that [Mr "R"] has also been heavily involved in people welfare work through the Cottage Centre at the Uniting Church, and through the Lifeline Organisation. His ingenuous nature inclines him to take on more than his work requires in the field of people problems. He is a caring person who likes to help others. Occasionally, this had led him to be taken advantage of by the very people he has been helping. He bounces back - such is his commitment.

[44]

30 On behalf of the applicant, five witnesses were called to attest to his general good character, the effect on the applicant personally on having to face his guilt of the indecency charge in 1993, and to give their observations of the applicant, especially with young people, since the time of his conviction. Mr Richard Bossina had been employed by TAFE and its predecessors since 1977 and had occupied senior teaching management positions in TAFE for the last 13 years. At the time of giving his evidence he was senior Head Teacher of Business Administrative Services at a college, a role he had undertaken since 1993. In 1993, he was aware that Mr "R" had been charged and convicted of indecent assault and had consequently been demoted and transferred to the college where Mr Bossina was then working. Mr Bossina's instructions from his supervisor at that time was that Mr "R" should be allocated the normal duties required of a teacher in business communication subjects and was to be treated like any other teacher in the assignment of duties to him. When Mr "R" arrived at the college, he met Mr Bossina and the supervisor: during the course of the meeting, Mr "R" outlined the nature of the conviction and the penalties which had been imposed on him. Mr Bossina said that while Mr "R" was at this college he was assigned classes in the Business Communication discipline, and those classes ranged from certificate to diploma status and included a mixture of male and female students of varying social, racial and ethnic backgrounds. The students were predominantly over the age of 18 years as most courses required the possession of the Higher School Certificate for admission, although on some occasions students may be under the age of 18 years. In relation to how Mr "R" interacted with the students, Mr Bossina stated: Because of my knowledge of [Mr "R"'s] conviction I paid particular attention to how he behaved with students, in particular with females, during interactions and contact outside the classroom. There were no incidents during this time where I consider [Mr "R"] acted inappropriately, was too familiar with the students, used inappropriate language or imposed himself on a student by breaching their personal space. During the time that [Mr "R"] was under my supervision I can also say that there was never any formal, or even informal, complaint lodged about him regarding a matter which relates to his behaviour or interaction with students. In addition to my contact with [Mr "R"] during work time I also had the opportunity to observe him outside the working environment. For a number of years our respective daughters both attended … high school at …. [Mr "R"] and his wife were both actively involved in many of the activities associated with the school and I observed them frequently volunteering their time and effort for school functions and activities. Having regard to my observations of [Mr "R"] and my discussions with him about the matter I formed the view that his conviction in 1993 was out of character. I have also formed the view that he is truly remorseful for his misconduct and it is my view that it is unlikely that such misconduct will ever occur again. Throughout the period I have known [Mr "R"] I have never observed any action of him which would cause me to be concerned for the welfare and safety of any student in his care. I do not believe that [Mr "R"] poses a risk to the safety of children and young people who might be placed in classes conducted by him in TAFE. I do not consider his conviction an impediment to him being an active and useful member of my teaching staff. 31 In oral evidence, Mr Bossina said that he had read the statements of the victim and her mother and Mr "R"'s statement which were presented to the Local Court. Nothing in those documents caused him to change the views he had expressed. In relation to the age of students likely to be taught by Mr "R", Mr Bossina said that it would be most unlikely for a person to be under the age of 18 although there may occasionally be 17 year olds. This would flow from the fact that Mr "R" would usually teach classes of a higher status, at diploma level or higher, which would have a higher age entry requirement.

[46]

33 Mr Terry Kintominas had been employed by TAFE since 1987 and had been promoted to Head Teacher of Business Services in 1995. In 1995, Mr "R" was a full time teaching member of the staff at the college in which he was working and was under the supervision of Mr Kintominas. During the period that Mr "R" was under his supervision Mr Kintominas found him to be an honest, devoted and a duty minded teacher who gave him no reason whatever to question his integrity. As Head Teacher he was the first "port of call" when a student had a grievance about any of the teachers or other teachers. He had received no complaints about Mr "R" and, in fact, the general response from students whom Mr "R" taught was that they held him in very high regard. At no time did Mr Kintominas ever receive any complaints relating to improper actions, suggestions, poor teaching or any other matter relating to his character or teaching ability. When Mr "R" was transferred from his section, Mr Kintominas expressed disappointment at losing him as a member of his teaching staff. In relation to this observations of Mr "R", Mr Kintominas stated: Whilst [Mr "R"] was teaching at … I observed his teaching style and interaction with students in the classroom. These occurred due to informal assessments requiring several attendances in his classroom for various purposes. My observation of [Mr "R"] during these attendances did not ever give rise to any suspicion on my part that his teaching style or actions were inappropriate. Indeed, my attendance only served to confirm my view that the students held [Mr "R"] in high regard. I am aware that on 12 May 1993 [Mr "R"] was convicted at the … Local Court of the offence of indecent assault on a person under the age of 16 years. I have had the opportunity to discuss this matter with [Mr "R"] and he has expressed severe remorse for his behaviour. I have observed that he carries a heavy burden due to that behaviour. I am not fully aware of the aspects of [Mr "R"'s"] life at the time of the offence but I do believe that he still carries with him the guilt of his actions and will do so for many years. [Mr "R"] is a sensitive person who feels sorrow at any cause of pain he might cause to others, even through words uttered. Having regard to my observations of [Mr "R"], in interacting with students, my discussions with him concerning his conviction, my opinion as to his character, I have formed the view that his actions which gave rise to his conviction in 1993 were out of character and unlikely to ever occur again. Having regard to all of the above matters, I believe that [Mr "R"] is a fit and proper person to be a teacher in TAFE. I would be very happy to have him appointed to my section and would have complete confidence that he would not pose a threat to any person under the age of 18 years, or indeed, any person who might be placed in a class which he taught.

[51]

38 Ms Barbara Ciardi was a registered nurse who had known Mr "R" for approximately 36 years. They first met as young people living near each other's homes and attended the same sunday school, church and Pathfinder groups. During high school, they had both attended the local Presbyterian Church and Fellowship and became leaders of the Youth Groups. They continued their friendship over the years with their daughters both attending the same high school for six years. During this time, they had both become involved in school activities spending many hours together at school and other venues. They continued their friendship over recent years being supportive of each other "during difficult times". Ms Ciardi made the following observations: Having observed [Mr R"] over many years I have formed the view that he is a warm and gracious personality with the gift of being able to communicate effectively with people of different ages, nationalities and abilities. He is a kind, encouraging, understanding and compassionate man who genuinely cares for people and labours hard and long to assist them to achieve their best results. I have found him to be honest, trustworthy and reliable in all my dealings with him. I am aware that on 12 May 1993, [Mr "R"] was convicted at the … Local Court of the offence of indecent assault on a person under the age of 16 years. I have had the opportunity to discuss this matter with him and am aware of the facts and circumstances surrounding the offence. On the basis of my observations of [Mr "R"] and discussions I have had with him, I formed the view that he is well aware of the seriousness of the offence and is truly remorseful for his misconduct. During the period I have known [Mr "R"] I have had occasion to observe him relating to children and young people of various ages. It is my observation that [Mr "R"] has related to such children in a normal and proper manner. Throughout the period that I have known [Mr "R"] I have never observed any action of his that has caused me to be concerned for the welfare and safety of children in his care. [Mr "R"] relates easily with young people and is highly professional in the manner in which he deals with them. Both my sons have the opportunity to receive advice and assistance from [Mr "R"] concerning TAFE courses available to them. Ms Ciardi had been provided with various court documents including statements of the victim and Mr "R".

[60]

48 In her statement to the police in December 1992, the victim's mother said that, at the end of February that year, her daughter had complained that Mr "R had touched her on the breast. She challenged Mr "R" about it but Mr "R" simply said that he was not going to comment. He then changed the subject and moved away, but after a while he said "yes". She then had a note in her diary for April that "[Mr "R"] ... has touched me again" and, although she did not recall her daughter telling her about this, the note was in her own handwriting. On 28 July 1992, her daughter told her that she had been touched again by Mr "R". The victim's mother rang Mr "R" at work and told him of the allegation which he vehemently denied. That afternoon, she found a hand delivered letter in her letterbox from Mr "R": that is, the document referred to in paragraph 6 of this judgment. In her second statement made to the police in January 1993, the victim's mother gave an account of the meeting in December 1992 with Mr "R" at her home where he admitted his guilt to her. This is the conversation referred to in paragraph 8 of this judgment. 49 The reference which the victim's mother gave to Mr "R" in 1993, before he was dealt with by the Local Court, stated: I, the undersigned, was a student of [Mr "R"] during 1989, for two subjects of the Welfare Introductory Course. [Mr "R"] was an affable, gregarious and inspiring teacher. He appeared to genuinely enjoy his chosen profession and his enthusiasm for teaching engendered enthusiasm for learning among the students. [Mr "R"] never tired of explaining concepts to students to ensure their understanding was correct. [Mr "R"] had an "open door" policy and would always make time for students - from many sections of the college - who needed to talk to him about Course or personal matters. [Mr "R"'s] willingness to listen and caring nature often meant that his free-time was monopolised by students in various crisis. In addition to his teaching, problem solving and class intervention [Mr "R"] would frequently participate in students' social activities and co-organise end-of-semester/end-of-course social functions. I know [Mr "R"] as a personal friend as well as teacher and have no hesitation in providing this reference for him.

[65]

54 In relation to psychiatric diagnostic issues, Dr Westmore in his report stated: [Mr "R"] on the history he provides, does not suffer from the condition of paedophilia. He has at present no evidence of a major mental illness such as schizophrenic illness or a major depressive illness. There is no evidence that this man suffers from a personality disorder of any type, and indeed, on the contrary his personality profile would suggest that he is a man with a number of personality strengths and attributes. He has recently suffered a bereavement and demonstrated some emotional lability in reference to the loss of his father and he has demonstrated emotional lability in the form of tearfulness when discussing his previous inappropriate behaviour towards the 13 year old girl. He is best described as having an adjustment disorder with depression and anxieties, these problems of mood state arising in the context of his current psychosocial stressors and feelings of guilt, regret and remorse regarding his past inappropriate behaviour. Dr Westmore expressed his opinion and conclusions as follows: You have asked me to express a view as to whether or not your client [Mr "R"] suffers from any psychological or psychiatric condition which may result in him being a danger or threat to a child or children placed in his care as a teacher. I do not believe he has any such condition which may make him a particular threat or danger to children who might be placed in his care as a teacher. While there appears to be no clear explanation or understanding as to why he behaved as he did towards the 13 year child, from the history he provides he does not have a psychosexual disturbance of any type and certainly not of a type which might make him more vulnerable to again acting inappropriately towards children. He does not, in other words, suffer from the condition of paedophilia. [Mr "R"], apart from the one incident involving the 13 year old child, has no previous forensic history, he describes as having good and close relationships with his family of origin, a functional and long term social network and he has on the history he provides a very good occupational history. I believe this man's risks of re-offending are minimal, if they exist at all. He has some insight into the inappropriate nature in his behaviour towards the 13 year old child, continuing evidence of emotional lability when that matter is discussed and he was able to express in a relatively insightful way an appreciation of the wrongness of his previous behaviour and why it was wrong.

[74]

64 Dr Westmore rejected counsel's suggestion that simple clinical assessment of offenders had been found not to be a reliable predicator of future recidivism. Provided that a truthful and accurate history of psychosexual orientation is given, clinical assessment was probably reliable. In Dr Westmore's view, psychometric testing was of little or no value and the most accurate way of determining these issues was with phallometric testing. Phallometric testing was described as involving a physiological measurement of penile tumescence - an instrument is placed on the penis which is very sensitive to blood flow and penis size, patients are shown various pictures, and in response to those pictures, if there is a change in penile tumescence, those changes are recorded. In the absence of phallometric testing, a psychiatrist was reliant on the history the patient gives and the factual history. Significant matters are the number of victims, how many times the offence was committed, the age of the victim and the like - they were all factors. Dr Westmore firmly rejected the proposition that clinical assessment was not accurate as a reliable predictor of recidivism. He said that if the history is accurate then it is as reliable as anything else. He said that the fact that the applicant here said that there was one incident, and acknowledged that there were others with this one victim, reflected on his reliability. 65 The fact that the applicant had social skills and was more likely to know the right thing to say to a clinician and the importance of empathising with the victim and acknowledging the wrongness of his action did not mean that the applicant was not genuine. These matters were not unimportant in Dr Westmore's view because some patients do not show any of these signs and that factor is important. There was no way of determining the genuineness of emotional responses in the applicant. He was left with a clinical impression as to whether they were true emotions or not, and the impression he formed was that the applicant was being genuine. The fact that Dr Westmore was misled over the number of incidents did not cause him to withdraw even to some degree from the view that he had formed of the applicant.

[87]

79 Dr Allnutt concluded his report by stating: In applying clinical assessment there are a number of factors that may attenuate the applicant's actuarially derived risk scores. These include: the absence of complaints of a sexual nature in the last eight to nine years; the offence for which he was convicted was an impulsive act, not repeated; he does not have a substance abuse problem, he is married; he does not manifest overt personality disorder; he reports that he has purposefully not pursued a teaching career that would expose him to a younger group of students and not one that would expose him to students of similar age to his original victim; his teaching qualifications do not allow him to teach children or young adolescents; while he may come into contact with students under age 18 these students are likely to be less vulnerable than those at school. There are also factors that exacerbate risk; that the offence occurred in the context of personal distress suggests that recurrence of such a situation would act as a trigger for offending; it is likely that if he addressed his offending behaviour with the psychiatrist, this was to a limited extent; while convicted of one offence, he reports it occurred on one other occasion; his report is at odds with the victim's report, which is that the offence occurred on numerous occasions over a period of time, which, if true, raises the likelihood of paraphilia. Taking these clinical and actuarial factors into consideration, on balance it is my view that compared with other sex offenders, the applicant remains in the low risk grid of sex offenders. Whether this applicant, specifically, will or will not be one of those in this risk group who are predicted to re-offend in the long term, is not possible to say with certainty. This group does not present "no risk". However, neither can the average man with no history of sexual offending be regarded as posing "no risk". We do not have reliable information of the rate of sexual offending in the general population (a measure of the average man) as comparator because the general population does not reliably report sexual offending. In my view however, a history of sexual offending suggests a higher risk than the average man who has no official history of sexual offending. If the offence occurred impulsively, the risk would likely be closer to that of the average man. If the offending occurred on two occasions, in my view, it brings into question whether or not it was part of a more repetitive pattern of the offending as reported by the victim. If the offending occurred repeatedly as a course of conduct persisting over a period of time, then the risk is likely to be significantly higher than the average man.

[99]

93 The respondent Commission then submitted that it was not permissible to impose conditions under s 9(9) in order to lift the applicant over the threshold of risk. In other words, the applicant must establish that he is not a risk without conditions being attached. Section 9(4) addresses the risk in terms of the person who is the subject of the proposed order: the focus is not upon the risk which might attach to the making of a particular order. When counsel's attention was drawn to the fact that s 9(9) contemplates that conditions can be imposed either at the stage of making a stay order or on the making of a final order, which suggested from the context that conditions may have a more important and wider role than suggested by the respondent Commission, it was submitted that conditions may be used to remove any lingering doubt that the Commission may have about the applicant's risk to children. This would arise where, in applying the Briginshaw standard, if the Commission was satisfied to 85 per cent or 90 per cent, yet there was still a lingering doubt as to whether the person did present a risk, that doubt might be removed by imposing some suitable condition. The Commission could also make an order in the nature of a self executing order by granting the application but stipulating the order not commence until the applicant has, for example, completed some specified treatment, perhaps with a nominated doctor. It was said that this approach is supported by the gravity of the consequences which might flow from the making of an order. The making of an order effectively gives an applicant a licence to work with children. The legislation says there is a presumption of risk so therefore the gravity which might flow from the making of an order is the potential if a person is granted a licence to work with children. It would not be appropriate to decide whether or not to make an order on the normal tipping of the scale on a balance of probabilities; the scales of a normal civil case might be tipped 51 per cent in favour of making an order, but the fact that there was a 49 per cent chance that the person remains a risk to the safety of children would be completely contrary to the protective nature of this legislation. Although the Briginshaw test does not quite get to the level of the criminal standard, it must come close to it in applying this legislation because of the need to eliminate any risk.

[103]

97 I also have difficulty with the submission that the Act operates on a presumption of risk which is rebuttable. A presumption is "a judicially applied prediction of factual or legal probability" (see "A Dictionary of Modern Legal Usage", 2nd Ed., Garner, Oxford University Press, 1995). While it might be said, in one sense, that the Act presumes that a person who has been found guilty of a serious sex offence (as defined) is a risk to a child when engaged in child-related employment and that presumption may be rebutted by demonstrating that the person does not pose a risk to the safety of children, the statutory scheme does not use those words and does not talk in terms of a presumption which may be rebutted. Indeed, the statutory scheme strikes immediately at those who have been guilty of a serious sexual offence by declaring them prohibited persons who may not continue in or seek child-related employment. There is no presumption of risk, but rather the immediate imposition of a prohibition supported by penalties. The Act continues to apply to that person unless a relevant tribunal makes an order declaring that the Act is not to apply to that person in respect of a specified offence. A declaration and order made by this Commission under s 9(4) is a finding that, whatever risk the prohibited person posed to children in the past (if any), that person had now demonstrated that he/she does not pose such a risk. The concepts of presumption and rebuttable presumption seem a little removed from this statutory scheme and do not adequately describe the intervention of the legislature in prohibiting the performance or obtaining of work by a designated person. While not a lot may turn on these matters, resort to notions of presumption and rebuttable presumption may cloud the proper approach to be taken to these somewhat difficult and novel provisions. 98 The provisions of s 9(4) have been the subject of consideration in at least two other decisions of the Commission. In "G" v J & H [2001] NSWIRComm 69, Kavanagh J looked closely at the terms chosen by Parliament ie whether the person "does not pose a risk to the safety of children". Her Honour noted: The Macquarie Dictionary 1991, 2nd Ed, defines 'pose' as 'an examination by putting a question'; defines 'risk' as 'an exposure to the chance of injury' or 'a dangerous chance'; 'safety' is defined as 'freedom from injury or danger' and concluded: The Commission must therefore examine and question whether the applicant in child-related employment gives to the children freedom from an exposure to the chance or dangerous chance of injury. Interestingly, Butterworths "Australian Legal Dictionary" 1997 defines "risk" as:

[107]

101 Parliament could not have intended to set up a statutory right to make an application for an order and declaration under s 9(4) if the very people who could make such an application were, because of their previous conviction for a serious sexual offence, denied any ability to obtain an order and declaration because they were, by definition, some sort of future risk of re-offending and therefore a risk of posing a danger to the safety of children. There is nothing in the Second Reading Speeches on the introduction of the Bill which indicates such an added draconian approach as contended for by the respondent Commission. In fact, the contrary appears from the Parliamentary debates. The Minister for Community Services in introducing the Bill for the second time in the Legislative Assembly stated: The other major function of the Commission is employment screening. The Royal Commission identified shortcomings in screening and employment practices that gave paedophiles easier access to children. Wood J's report emphasised the need for better employment checks on staff as one way of reducing risks to the very children they are employed to care for. The Bill provides the legislative framework for a significantly enhanced screening system. … The guidelines will be prepared in consultation with representatives of relevant government, community and employment-related organisations. … The Childrens Commission will conduct screening for other organisations, undertake risk assessment, develop screening-related policies and procedures, set standards and audit the practices of other agencies. This places clear limits around the Commission's screening responsibilities. From now on, prospective employees for positions of child-related employment will be subject to stringent checks for past behaviour that indicates that they may be an unacceptable risk when working with children. The Child Protection (Prohibited Employment) Bill (No. 3) will implement recommendation 139 of the Wood Royal Commission. … The object of the Bill is to prohibit persons with convictions for serious sexual offences from working in positions of children-related employment. Its provisions form an integral part of the employment screening system, that are low cost, that are easily undertaken by the employer. Under the Bill, all current and prospective employees will be asked to declare any convictions for a serious sex offence. If they do, they will be prohibited for applying for, or continuing working in, positions involving direct unsupervised contact with children (emphasis added).

[111]

105 Although it was accepted on the totality of the evidence in this case both by the parties and by the Commission, that Mr "R" was employed in child-related employment within the meaning of the Act, that concept is not easily applied because of the terms of the definition. A case such as this may lead to a concentration on the type of employment undertaken by Mr "R" and the type of students that could be expected to come into contact with him in the performance of his duties as a TAFE teacher. The Act, however, does not work on that narrow basis. As has been pointed out by Kavanagh J in "G" v J & H [2001] NSWIRComm 69, by virtue of s 9(1) the effect of the Commission's order is not merely to allow a person to continue in particular employment: an order by the Commission attaches to a person in respect of a specified offence, not particular work. An order of the Commission, in effect, allows that the person be forever exempt in respect of the offence concerned from the operation of the Prohibited Employment Act. Therefore, the Commission is to be satisfied that the person is an appropriate person to engage in all child-related employment, including the performance of work as a volunteer for an organisation. (See para [37]). It might well be that by the imposition of conditions under s 9(9), the operation of the Act is not to apply to a prohibited person so long as that person undertakes a particular type of employment, for example, in the present case, TAFE teaching in nominated subjects, where the student population is known to be primarily Higher School Certificate age, that is, 17 or 18 years of age or older. On such an approach, the Act would continue to apply to the prohibited person in relation to all other types of child-related employment and I can see no reason why, if employment outside that specified condition was later to be sought by such a person, another application under s 9(1) could not be made and the applicant considered in light of the child population likely to be encountered in such an activity. These are not hypothetical considerations because they go to the practical effect of the orders which may be made by the Commission and the types of considerations that may need to be given in the circumstances of a particular case.

[113]

107 In the HREA case, Peterson J stated: 25. The notion of the word "primarily" involving direct contact immediately raises concepts of time but would also, it seems to me, necessarily involve considerations of a qualitative kind. It seems inconceivable that an Act, the obvious purpose of which is to protect children from undesirable contact with relevantly inappropriate persons should operate upon some time analysis of the work involved. Put another way, to find that a wardsman such as "K" was spending approximately 60 per cent of his time in relation to adult patients and 40 per cent of his time in relation to children would not seem to provide a factual basis for the formation of the view that the Act ought be unconcerned with him because he was not "primarily" involved with children in his work. Mr Bourke of counsel for the Commission for Children and Young People urged the view that this Commission should take a purposive approach to the construction of the Act (s 33 of the Interpretation Act 1987) and in relation to such example conclude that the Act was intended to apply. In order to achieve that result in conjunction with the phrase "primarily involves" one needs to construe the words in context as having an intention not to describe the major and substantial time or indeed, it seems to me, the major and substantial function of the employee, but rather to view the phrase as it was intended namely, to describe the primary or essential requirements of the job. 26. This approach seems to me to conform with the intention of Parliament as evidenced by the particular words in the context of the Statute as a whole. Strictly it seems unnecessary to resort to the Second Reading Speech by the Minister when the Bill leading to the Act was before the Parliament but such reference gives me comfort for the view which I have formed. The Minister (the Hon. Mrs Lo Po) said in the Second Reading Speech: The object of the Bill is to prohibit persons with convictions for serious sexual offences from working in positions of child-related employment … all current and prospective employees will be asked to declare whether they have any convictions for a serious sex offence. If they do, they will be prohibited from applying for, or continuing to work in, positions involving direct unsupervised contact with children. 27. It follows from my conclusion that the applicant's employment does primarily involve direct contact with children.

[114]

108 The Macquarie Dictionary, 3rd Ed. defines "primarily" as: 1. In the first place; chiefly; principally. 2. In the first instance. At first; originally . In Barnes v Deveson [1960] VR 604, Little J dealing with the provisions of the Motor Car Act 1958-1986, which made it an offence for a motor car constructed "primarily" to carry goods, to travel above a specified speed, was moved to say about that provision: In my opinion … the language under consideration plainly imports "purpose" and the word "primarily" means that the purpose of carrying goods is the principal purpose - the principal purpose it was constructed to serve as distinct from a subsidiary purpose. According to this meaning, the usual and normal meaning of the word, the term "primarily" leads to the difficulties identified by Peterson J in the HREA case. It has the effect of limiting the operation of the Act to employment that is itself concerned with children under the age of 18 years; it would exclude employment where direct contact with children under the age of 18 years was not the prime purpose of the employment. The use of the word is either an intended significant reduction in the scope of the protection made available by the Act or is an unintended consequence. It is significant that, within the definition of "child-related employment" in s 3(a) of the Act, in sub-section (ix) a form of employment identified is "employment in entertainment venues where the clientele is primarily children, …". This appears to be the normal and usual use of the word "primarily" and it is difficult to see why, within the same section dealing with the definition of "child-related employment" the opening words of s 3(a) and the use of "primarily" in sub-section (ix) would be used in a different sense. The matter is further complicated by the fact that in s 3(a)(vii) one kind of employment identified for the purpose of the definition of "child-related" employment, is "… employment in clubs, associations or movements (including of a cultural, recreational or sporting nature) having a significant child membership or involvement …". Here the word "significant" seems to be used in juxtaposition to the usual and normal use of the word "primarily".

[115]

109 Resort to the Second Reading Speeches in both Houses of Parliament indicates that the Commission for Children and Young People Bill (No 2), the Child Protection (Prohibited Employment Bill) No 3, and the the Ombudsman Amendment (Child Protection and Community Services) Bill No 3 were introduced and read together as cognate legislation. It is clear that a critical feature of this new legislative scheme was the creation of an effective employment screening process which was to be managed by the Commission for Children and Young People. The Act establishing that Commission, the Commission for Children and Young People Act 1998 No 146, in s 11 provides that one of the principal functions of the Commission is (i) to participate in and monitor screening for child-related employment in accordance with Pt 7 ". [As referred to earlier, the Commission for Children and Young People is to be made a party to proceedings under the Prohibited Employment Act: s 9(7)]. Part 7 deals with employment screening and s 31 describes the object of the Part as the protection of children by means of employment screening for child-related employment administered by the Commission and other agencies. In s 33, dealing with definitions, sub-section (1) defines "child-related employment" in the following way: Means any employment that involves direct contact with children where the conduct is not directly supervised, and includes any employment of a kind prescribed by the Regulations but does not include any employment of a kind excluded by the Regulations. The important word that is missing from this definition, which is found in the Prohibited Employment Act, is the word "primarily". Section 37 is entitled "Employment Screening mandatory for preferred applicants for certain child-related employment". The section applies to any decision by an employer to employ a person in "primarily child-related employment", being a person not already employed by the employer in child-related employment of that kind. The section makes it a duty of the employer to carry out all the relevant procedures of employment screening of the preferred applicant before employing the preferred applicant in that child-related employment. Section 37(6), for the purposes of that section, defines "primarily child-related employment" to mean, (a) paid child-related employment to which the Child Protection (Prohibited Employment) Act 1998 applies, or (b) child-related employment to which that Act applies by a Minister of Religion or other member of a religious organisation, or (c) child-related employment involving the fostering of children, or (d) if the Regulation so requires - child-related employment of the kind prescribed by the Regulation.

[117]

111 It may well be that the use of the term "primarily child-related employment" in s 37 of the Commission for Children and Young People Act may have led to the insertion of the word "primarily" in s 3(a) of the Prohibited Employment Act, whether by accident or by design. But these matters of construction are not to be decided on the basis of mere conjecture. In re Bolton and anor; ex-parte Bean (1987) 162 CLR, 514 Mason CJ, Wilson and Dawson JJ dealt with the legislative history of a particular provision of the Defence (Visiting Forces) Act 1963. The question before the court was whether the warrant under which Mr Bean was arrested and detained was authorised by s 19 of the Visiting Forces Act. In canvassing the various arguments their Honours stated: Ultimately, the answer is to be found in the proper construction of the provisions of the Act rather than by reference to the undisputed values securing the liberty of the individual that for centuries have illumined the common law. The respondents say no more and no less than that Mr Bean's apprehension and detention are strictly in accordance with the Act. They readily accept the abiding principles of the common law. The process of construction is in this case a difficult one and it is not surprising that reasonable minds may differ in the conclusions to which they come, as indeed has happened here. … There are powerful arguments, as appears from the reasons for judgment of Toohey J, in support of the respondents' contention that on its proper construction s 19 of the Act authorises the arrest in Australia of a deserter or absentee without leave from the forces of a country to which the section applies notwithstanding that the desertion or absenting occurred outside Australia. There are textual matters that tend to distinguish part III of the Act from part II, thereby emphasising that section 19 is not intended to be confined to deserters or absentees from visiting forces while in Australia. Furthermore, given that section is ambiguous, consideration may be given in ascertaining the meaning of the provision to the second reading speech of the Minister when introducing the Bill for the Act into the House of Representatives in 1963; Acts Interpretation Act 1901 (Cth, as amended, section 15AB). That speech quite unambiguously asserts that part III relates to deserters and absentees whether or not they are not from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law, is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However, unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law. (at 517 - 518) . 112 In Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1980-1981) 147 CLR 297, in the joint judgment of the Mason and Wilson JJ, consideration was given to the literal construction rule. Their Honours stated: Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the Statute. There is a similar problem with the related so called "golden rule" of construction. There are statements of the rule which would confine the courts to the ordinary grammatical sense of the words used unless that produces an absurdity or inconsistency. It is to be noted that Dixon J in Broken Hill South Limited v Commissioner of Taxation (NSW) (1937) 56 CLR 377 at 371, observed that departure from the ordinary grammatical sense is not legitimate unless there is 'some obscurity or some inconsistency', though it may be that 'obscurity' was intended to be a reference to 'absurdity'. For the reason already given in the discussion of the literal rule, departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency. In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task, the courts look to the operation of the Statute according to its terms and legitimate aids to construction. The rules, as D C Pearce says in Statutory Interpretation, p 14, are no more than rules of commonsense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the fact which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction, it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature. On the other hand, when the Judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an interpretation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. (at 320 - 321).

[120]

115 The oft quoted passage from Briginshaw occurring in the judgment of Dixon J arises from a discussion of the 1824 publication of Starkie's Law of Evidence and observations made by Professor Wigmore in his famous text ("Wigmore on Evidence, 2nd Ed). His Honour, in that context, stated: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law, no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. It is often said that such an issue as fraud must be proved 'clearly', 'unequivocally', 'strictly' or 'with certainty'. This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue, may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … but, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (At pp 361- 363).

[121]

116 The position is now codified by s 140 of the Evidence Act which deals with the standard of proof in civil proceedings. The section provides: 140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject matter of the proceedings; and (c) the gravity of the matters alleged. In the commentary to the Uniform Evidence Law , the author, Stephen Odgers, dealing with the background to the provisions of s 140, noted that in general the civil standard is not treated as a mathematical standard but as a reasonable attempt to find the facts in the circumstances of a particular case. The author then notes the judgment of four members of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear and cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (At 170 - 171 per Mason, CJ, Brennan, Deane and Gaudron JJ).

[130]

126 The respondent Commission pointed out that the offence here was an aggravated indecent assault on a child of either 12 or 13. The nature of the assault is around the middle or lower end of the offence but it had to be remembered that if the assault had been significantly more serious then it would not have been this charge, it would have been in the nature of a serious charge, sexual intercourse. It could not be said that this was a trivial charge at all. The nature of the offence was significantly aggravated by a number of factors which were particularly relevant for the purposes of the present proceedings. Firstly, the victim was a child. Many who had come before this Commission or the Administrative Decisions Tribunal have committed offences against adults, but this offence was specifically directed towards a child of a relatively young age, either still in primary school or who had just left primary school. Secondly, there was a significant age gap between the victim and the offender. Thirdly, the applicant was in a position of trust at the time, namely, babysitting. Fourthly, at the time, he was a teacher not of the victim, but a teacher, and so should have been even more conscious and aware of the harm that would be occasioned to the child by sexual interference by a mature male. Fifthly, it was a relatively recent offence having occurred just under ten years ago and, in the scheme of these sorts of applications, could be considered relatively recent especially considering the age of the applicant. The respondent also pointed out that in "A" v The Commission for Children and Young People (No 2) (2000) 104 IR 119 the President, Wright J, had noted that an applicant will most likely have had no further convictions and not be the subject of further adverse notification to the authorities when making application under s 9(1) to this Commission. Accordingly, his Honour stated, "the fact alone of absence of further convictions, an absence of further notification to the authorities are not matters of themselves that will necessarily, or be likely to, lead to a grant of an order under s 9" (see par [30]). The respondent Commission accepted that the absence of a further offence was something that the Commission must take into account but this was likely to be, realistically, the fact in the vast majority of applications.

[136]

133 A further concern was the fact that, back in 1992 - 1993, the applicant told the Probation Officer that the child had made a pass at him and he repeated that claim under questioning in the present proceedings. It is of concern that a 43 year old man, who was a teacher, would have interpreted the actions of a 12 or 13 year girl, probably barely out of primary school, as something he would describe as "making a pass" and something he would have responded to. This goes not only to the seriousness of the offence but also to his perception of the inappropriate nature of the behaviour. At no stage has he said to the Commission that it was an inappropriate perception when it occurred nor has he said to the Commission that he now realises the inappropriateness of that perception and acting on that perception. There is concern that the same attitude may well still persist today. The failure to make a statement now of the inappropriateness of his responses leads to the Commission being unable to place much weight upon his evidence. 134 There was also evidence that the applicant had not completed treatment while on his good behaviour bond. Dr Allnutt's evidence and the Hanson and Bussiere article indicated that was a factor tending towards a risk of recidivism. Finally, for the respondent Commission, it was submitted that the removal of the applicant from teaching duties was not as a direct result of the Prohibited Employment Act because it occurred prior to the Act coming into effect. It may well have been a response to the duty of care owed by TAFE to its students and be a reflection of a kind of protective policy prior to the legislative provisions coming into effect. On the evidence, there was no guarantee that the applicant would be returned to employment as a teacher in TAFE and that was a matter to be considered in the exercise of the Commission's discretion. If the Commission was satisfied that the applicant did not pose a risk to the safety of children, but that such an order would not alter the employment prospects of the applicant, there was no real point in making the order.

[144]

142 Much was sought to be made of the suggestion that the applicant had mislead Dr Westmore as to the number of occasions on which the offences had taken place with the young girl. I am not convinced that that is necessarily so, although Dr Westmore gave his evidence as if that was the case. I have earlier noted that in the initial part of Dr Westmore's report he refers to the plural "incidents" when recording the history of the offence and the fact that for the purposes of his report he had the Facts Sheet which was before the Local Court and which recorded that there were a number of occasions on which this conduct occurred. Towards the end of his report, Dr Westmore sets out the reasons why he regarded the applicant as being a minimal risk of re-offending and in the course of doing so refers to the fact that there was one incident. 143 In much of the discussion about this point, one factor appears to have been ignored: the applicant was actually charged with one offence and it was only in the Facts Sheet that it was recorded that there were a number of occasions on which the offence occurred. In his efforts to minimise his conduct, the applicant may well have stated that he was charged with only one incident, which is strictly correct. The circumstances in which one charge became conduct involving only one incident was not disclosed in the material before the Commission but the subtle difference is not unimportant. Whether Dr Westmore was actually misled or had assumed by the end of the session with the applicant that there was only one incident, essentially he did not alter his view. Despite persistent cross-examination, Dr Westmore was of the view that the behaviour was abhorrent to this man and there was not necessarily a sexual attraction to this particular girl; importantly, in his view, the offence was victim specific rather than disclosing some form of deviant behaviour and sexual appetite for children. Importantly, for my consideration, Dr Westmore's assessment was that it did not matter in what circumstance the applicant was teaching, including teaching at a girls' school: he had assessed the applicant's level of risk on his psychiatric position which was that the applicant represented a low risk.

[158]

156 There is a further flaw in the approach urged by the respondent Commission that the discretion to make an order should not be exercised, even if the applicant makes out a case under s 9(4), if there is a possibility that he will not be returned to teaching duties even if the order is made. Section 9(3) of the Prohibited Employment Act prevents the Commission from making an order under the section unless the employee is, inter alia, liable to be dismissed from employment under this Act or who is an employee who was dismissed under this Act. The evidence of Mr Ryan (Human Resources Manager, South Western Sydney Institute of TAFE) was: (a) that on 11 September 2001, Mr "R" was advised by letter that he had been identified as being a prohibited person within the meaning of s 5 of the Prohibited Employment Act; (b) that consideration was being given to the termination of his employment as a consequence of his Prohibited Employment status; and (c) that he would be given an opportunity to show cause why his employment should not be terminated. Clearly, under s 9(3) Mr "R" is an employee liable to be dismissed from employment under the Act. This is the only basis advanced by the employer for considering the termination of Mr "R"'s employment. Should the order be made but Mr "R" still be dismissed from his employment with TAFE, it will not be a dismissal because of the provisions of the Prohibited Employment Act and Mr "R" may have other remedies. It is sufficient for present purposes that Mr "R" meets the description set out in s 9(3)(a). 157 In this case, it is not without its significance that the employer: was made aware of the application made by Mr "R"; took the opportunity to intervene in the proceedings; yet did not oppose the application. If the employer thought that, in the exercise of its duty of care, the applicant could not be allowed to have direct, unsupervised contact with students, then it could not have stood silent in these proceedings. Even if the employer's stance could be described as neutral to Mr "R"'s application, that stance demonstrates the employer's relative lack of concern about the applicant working with children under the age of 18.

[159]

158 Despite provisions such as s 9(1) of the Interpretation Act, 1987 (which provides that the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion), from time to time there has been debate as to whether a statutory provision which is facultative can nevertheless oblige a tribunal to make an order should the necessary pre-conditions for the exercise of the power be established. Thus, in Ward v Williams (1954 - 1955) 92 CLR 496, five members of the High Court stated that in considering the correctness of this type of approach, it was necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that, in ascertaining that intention, one begins with the prima facie presumption that permissive or facultative expressions operate according to their natural meaning. Citing Cussen J in Re Gleeson (1907) VLR 368 at 373, the court continued: The authorities clearly indicate that it lies on those who assert the word "may" has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning. The meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligations. The question whether a Judge or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope of the objects of the enactments conferring the power" - per Lord Selborne: Julius v Bishop of Oxford (1880) L.R.5 A.C. 214 at 235. One situation in which the conclusion is justified that a duty to exercise the power or authority falls upon the officer on whom it is conferred is described by Lord Cairns in his speech in the same case. His Lordship spoke of certain cases and said of them: '[they] appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require it to be exercised". (1980) L.R. 5A.C at 225) …In the subject matter and context of s 66 (2) there are few positive considerations to be found in support of the interpretation which makes it obligatory upon the magistrate, once he is satisfied that the statutory nuisance exists, to make an order of one description or another. But there is one consideration which is usually accounted very strong. It is that the power is conferred upon a judicial tribunal and to be invoked by a judicial proceeding. Jurisdiction and powers are conferred on judicial bodies, usually for the enforcement of rights and the protection of interests, and permissive language will often in such a case be used not because it is intended to give the tribunal a discretion to grant or review the remedy, but because, although it is intended or contemplated that persons interested will be entitled to the remedy the tribunal is empowered to give, it is also intended, or in all events taken for granted, that the existence of the interests and validity of the claim to the remedy of a person seeking it will be for the tribunal to determine (at 505 - 507).

[161]

160 Under s 9(1) of the Prohibited Employment Act, 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". Sub-section 3 prohibits the Industrial Relations Commission from making an order under the section unless the person is an employee within the meaning of the Act who is liable to be dismissed from that employment under the Prohibited Employment Act or the person was such an employee who was dismissed in those circumstances. Sub-section 4 prohibits the making of an order under the section unless it is considered that the person, the subject of the proposed order, does not pose a risk to the safety of children and sub-section 5 proceeds on the basis that, in deciding whether or not to make an order under the section, the tribunal is to take into account a number of matters including (f) "such other matters as the tribunal considered relevant." Those provisions are an indication that the word "may" used in s 9(1) confers a true discretion. The Act covers a wide variety of employment and a wide variety of serious sexual offences: it therefore may have been thought prudent to permit a consideration of particular, and may be special, circumstances whereby an order is not made although the applicant satisfies the Commission that he or she is not a risk to children. However, it is difficult to accept that where a person is either liable to be dismissed or has been dismissed under the Prohibited Employment Act, a tribunal would not make an order if the applicant establishes that he or she does not pose a risk to the safety of children. As earlier pointed out, the President, Wright J has observed that the legislation does not impose further penalties for the offences identified: a tribunal should not refuse to make an order simply to express its distaste or abhorrence at the previous conduct of an applicant. It is in this context that the right to work guaranteed by the Universal Declaration of Human Rights (Article 23) has a role to play in the consideration undertaking by a tribunal called upon to apply this legislation. Bearing in mind the obvious disruption to employment and hardship that may result from being a prohibited person under the Act, in normal circumstances it would be expected that, when persons make out a case that they are (or are no longer) a risk to children, then an order should be made.

[162]

161 In the preceding paragraph I have raised the issue of the "right to work" as a valuable human right and perhaps a common law right. These propositions require some consideration. In his paper delivered at the Kingsley Laffer Industrial Relations Memorial Lecture (University of Sydney, 23 April 2002) Justice Michael Kirby said: … judges engaged in labor law cases, and tribunal members in discharging their duties, can also take into account applicable principles of international law as they perform their functions. They can especially do this where those principles concern fundamental human rights. No Australian judge or tribunal member should forget the important step stated in the reasoning of the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1. The Court was there faced with the question whether the common law refusal to acknowledge native title to land could still be accepted as the law, although it was so clearly discriminatory and unjust. In his reasons, which were endorsed in this regard by Chief Justice Mason and Justice McHugh, Justice Brennan pointed out: The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the employment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule …((1992) 175 CLR 1 at 42) This principle is not, of course, confined to the International Covenant on Civil and Political Rights. It is one of general application. It extends to international law as declared by other binding treaties, certainly those to which Australia is a party. It therefore includes the international Coventions of the ILO which Australia has ratified. Where the common law has no exact precedent, where a statute is ambiguous and, in my view, where the Constitution yields competing interpretations, universal principles of international law may be used to resolve the judicial uncertainty (Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 417-422 [166]-175]). Use of this principle with respect to constitutional interpretation may still be controversial. But use of it in the elucidation of common law principle and the ordinary functions of statutory interpretation is, in my view, wholly orthodox. The common law application is expressly endorsed in Mabo [No 2]. The use in elucidating ambiguous statutory language is comfortable with a longstanding principle of interpretation that attributes to parliaments a purpose (in the absence of clear and express language to the contrary) to respect and uphold the fundamental civil rights of the people (cf Bropho v Western Australia (1990) 171 CLR 1 at 17; Wik Peoples v Queensland (1996) 185 CLR at 146-147; Durham Holdings Pty Ltd v New South Wales (2001) 75 ALJR 501 at 506-508 [27]-[38]) 162 Whether or not the law recognises the concept of a "right to work" is a question of some complexity. In Buckley v Tutty (1971) 125 CLR 353, it was argued for the respondent that, where a body controls a trade, profession or occupation, a member has a right to follow his trade etc unhampered by unreasonable restraints of trade. He has a right to work and a right to be employed. Such a right is a civil right meriting the protection of the court. It was further argued that the courts will intervene in the affairs of unincorporated associations where there is an injury to a plaintiff in the exercise of a civil right. These arguments were not, in terms, dealt with in the judgment of the court but within the context of a restraint of trade on a football player, the court recognised that a refusal to permit a transfer, to effectively sideline the player for a significant period of the contract and to impose a regime of transfer fees was in restraint of trade. It seems essential to that finding was the notion of a right to work when the contract was on foot. 163 The legal concept of a "right to work" has been considered in the context of restraint of trade cases. In Nagle v Feilden [1966] 2 QB 633, Mrs Nagle, a racehorse trainer, was refused a licence to be admitted as a member of the Jockey Club which had a monopoly on horse racing on the flat in Great Britain. Mrs Nagle sought a declaration against the stewards that their practice of excluding women horse-trainers from being members was against public policy. She also claimed an injunction ordering the stewards to grant her a licence. The stewards applied to the Master in Chambers to strike out the statement of claim on the ground that she had no locus standi since no contractual nexus existed between her and the stewards. The application by the stewards was successful, and her appeal was dismissed. However, the Court of Appeal allowed the appeal on the preliminary point in regard to striking out the statement of claim. Although the decision turns on the preliminary point of the plaintiff's locus, it is said that the speeches of the members of the court revealed the potentiality of the notion of the "right to work" as a new basis for challenging restraint agreements even in the absence of a contractual nexus between the parties (see Recent Developments in Restraint of Trade by K L Koh [1970] 44 ALJ 107). Lord Denning MR cited two cases where declarations, and in one case an injunction, were granted even though there was an absence of a contractual relationship, stating that the true basis of jurisdiction in these cases was a person's "right to work".