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

"A" v Commission for Children and Young People (No 2) (2001) 104 IR 119 AG v Commission for Children and Young People [2001] NSWADT 163, 26 September, 2001) Barnes v Deveson [1960] VR 604 Bolton and anor ex-parte Beane (1987) 162 CLR 514 Briginshaw v Briginshaw [1938] 60 CLR at 361- 2 Buckley v Tutty (1971) 125 CLR 353: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1980-19810) 147 CLR 297 "G" v J & H [2001] NSWIRComm 69 HREA v Commission for Children and Young People [2001] NSWIRComm 93 "L" v The Commission for Children & Young People [2001] NSWIRComm 134 CASES CITED : Lee v Showman's Guild [1952] 2 QB 329 McLeish v Faure (1979) 40 FLR 462 Nagle v Feilden [1966] 1 All ER 689, [1966] 2 QB 633 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Owens and Ors v Australian Building Construction Employees and Builders Labourers Federation (1976-1979) 46 FLR 16 at 25-26 Pastry Cooks Union v Gartrell White (No 3) (1990) 35 IR 70 Re Gleeson (1907) VLR 368 at 373 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Ward v Williams (1954-1955) 92 CLR 496

HEARING DATES: 01/30/2002; 01/31/2002; 04/03/2002 DATE OF JUDGMENT: 05/16/2002

APPLICANT: Mr P MacMahon, Solicitor MacMahon Associates

LEGAL REPRESENTATIVES: RESPONDENT: Mr Ian Bourke of counsel SOLICITOR: Mr Wayde Bloomfield Crown Solicitor's Office

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : HAYLEN J 16 May 2002 Matter No. IRC 5978 of 2001 "R" and New South Wales Commission for Children and Young People. Application under s 9 of the Child Protection (Prohibited Employment) Act 1998. JUDGMENT [2002] NSWIRComm 101

1 On 20 January 1993, Mr "R" was charged under s 61M(1) of the Crimes Act 1900 that, between the 1st day of February 1992 and the 31st day of July 1992, in circumstances of aggravation, he assaulted a young girl aged 12 or 13 and at the time of the assault "did commit an act of indecency". Although initially a plea of not guilty was entered by Mr "R" when the matter was dealt with on 12 May 1993, that plea had been altered and a plea of guilty entered. The "Facts Sheet" noted that "R" had no previous convictions. It was further noted as follows: The allegation contained in statement form outlined a number of occasions between February 1992 and July, 1992 when the defendant was minding the young person … at the address. The young person alleged that on these occasions the defendant placed his hands underneath her clothing and rubbed her breasts with his hands. The young person subsequently complained to her mother of these incidents and the defendant was confronted with the allegations, which he denied. The last occasion being the 28 July 1992. Before the court were statements and records of interview made by the defendant, the young girl who was the victim and her mother. The young girl's statement made it clear that "R" had placed his hands on her breast on numerous occasions and almost on every occasion during which he was minding her during her mother's absence while completing a TAFE course on Monday nights. Mr "R" was placed on a good behaviour bond for a period of three years with two conditions: namely, that the Probation Service Supervise "R" for such times as was deemed necessary and that he attend such psychiatric counselling as deemed necessary. Mr "R" apparently completed the three year period of the good behaviour bond without incident and although there was some psychiatric counselling this did not continue during the entire three year period as not being required by the Probation Service.

2 At the time of this offence, Mr "R" was Head Teacher at TAFE, was a married man with three children, was active in the Uniting Church, and appeared in every sense to be a solid and reliable citizen. As a result of the offence, he was demoted from his position as Head Teacher of Business Studies (which he had occupied for three years) to the position of teacher in September 1994. In October 1994, he was notified that he had been transferred to a teaching position at another location commencing on 30 January 1995. In April 1997, he was informed that he was to be removed from teaching duties and seconded to an educational officer's position in the Educational Planning Unit of TAFE whilst consideration was given to his status following his conviction in May 1993. In December 1997, Mr "R" was advised that he was to be employed on duties other than teaching. Mr "R" stated that since 1996 he had held positions at the South Western Sydney Institute of TAFE as Project Officer, Educational Planning Unit between 1996 and 1999; as Project Officer International Services Unit, 1999 to 2000; Staff Development Officer, State Library of New South Wales (secondment for four months) during 2000; and Project Officer, Admissions and Students Services from 2001 to the present time.

3 On 6 September 2001, Mr "R" made application under s 9 of the Child Protection (Prohibited Employment) Act 1998 (the Prohibited Employment Act) for a declaration and order that the Act does not apply to him in respect of the offence to which he pleaded guilty on 12 May 1993. In the Grounds and Reasons in support of the application, Mr "R" stated: I am a fit and proper person to engage in the profession of teacher. I am not a person who poses a risk to the safety of children. My conviction on 12 May 1993 does not give rise to any concern for the safety and well being of children placed in my care.

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".

5 I am satisfied on the material before me that there is jurisdiction for the Commission to deal with Mr "R"'s application for a declaration and order under the Prohibited Employment Act. Although I have noted Mr Ryan's evidence that the Department of Education and Training has classified teachers in TAFE as being in "child-related employment", I have come to the view that Mr "R"'s employment falls into this category on the totality of the evidence. Following Mr Ryan's evidence, counsel for the respondent Commission conceded that the jurisdictional issue seemed to be overcome as Mr "R"'s employment was technically as a teacher and, even if contact with young people under the age 18 was minimal, it was accepted that it would amount to employment under the Prohibited Employment Act. This issue is considered in more detail from par 105 of these reasons for judgment.

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.

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:

I made a diagnosis of Adjustment Disorder with features of anxiety (DSM 111 R 309.24). This condition followed the accusation. It arose in a man with obsessional personality traits who had been working excessively long hours, and had been under some stress for at least 12 months as a result of this self-imposed regime of work. In my opinion his marital relationship had been deteriorating for some years partly as a result of his compulsive need to work and prove himself academically. His gross lack of judgment in the situation he was accused of reflects the stresses he had been under and is very much out of character with his previous standard of conduct and altruism, in which he has been a committed teacher and caring person. … It is clear that he is still working through some of the issues which have arisen as a result of this accusation. He is now confronting these issues openly, has begun to talk to his wife and father about these problems and is showing a high level of concern for the other individuals concerned. Dr Haig noted that in his opinion Mr "R" required ongoing individual psychotherapy of a cognitive behavioural type and marital therapy with his wife.

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.

10 A pre-sentence report dated 10 May 1993, which was presented to the Local Court, contained a history of the offence obtained from Mr "R". In that history, Mr "R" was described as being "adamant" that the touching of the girl's breast had occurred on only one occasion and that when Mr "R" had realised what he was doing he had immediately stopped and felt deeply ashamed. This statement was made by Mr "R", although the victim's statement clearly alleged that this was continuous behaviour by Mr "R" over a number of months. The assessment made in the pre-sentence report contained the following: The offender presents as a man who has reached his goal of becoming a teacher and of obtaining a high level of academic achievement. His involvement in his chosen profession and his active participation in church and community roles are commendable . However, [Mr "R"] realises he has placed all these things, including his marriage, in dire jeopardy by the commission of this offence. … Taking into account the type of offence, [Mr "R"] has been assessed as a suitable candidate for a community service order. He has consented and work is available.

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.

12 Another reference spoke of Mr "R"'s involvement in the Uniting Church. He had been an Elder in the Church for five years; was a Worship Co-ordinator for a number of years, having organised and led services at various times; was an active member in a peer support group for about 12 years; and was a member of the Board of the Cottage Family Day Care Centre for six years and for a number of those years served as its Secretary. He was a Steward of the Church. A reference from a Minister of the Uniting Church stated that he had observed Mr "R" to be a warm, sensitive and understanding person. He was not aware of any previous reports of Mr "R" engaging in inappropriate behaviour towards children.

There was also tendered a reference from the mother of the victim (which I will refer to later) and other general testimonials.

13 In the present proceedings before the Commission, the applicant, Mr "R", gave evidence by way of affidavit and also by way of oral evidence. He attested to holding the following qualifications: a certificate in personnel management (1972); Bachelor of Arts (Communications) (1976); Graduate Diploma in Adult Education (1981); Graduate Diploma in Personnel and Industrial Relations (1982); Master of Social Administration (1994); and, certificate in Workplace Training (1996). He said he had been employed as a teacher by the New South Wales TAFE since January 1980. His affidavit recorded his demotion in September 1994 from Head Teacher to teacher and his transfer in October 1994 to another college campus. These steps appeared to be disciplinary measures taken by his employer following his conviction in the Local Court.

14 The applicant stated that, while teaching at the campus to which he was transferred, the vast bulk of his work involved students over the age of 18 years. He conceded that some classes may have involved students under 18 years but they would have already received their Higher School Certificate and would normally attain their 18th birthday in the first year of their attendance at TAFE.

15 In April 1997, he had been removed from teaching duties and "seconded" to an education officer's position in the Educational Planning Unit of the Institute whilst his status was being considered in light of his 1993 conviction. Mr Michael Ryan, the Manager of Human Resources for the South Western Sydney Institute, who subsequently gave evidence in the proceedings, prepared a report in August 1997 regarding Mr "R". This report appears to have become necessary because of a direction from the Managing Director to give consideration to staff suspected of sexual misconduct involving persons below the age of consent. The report noted that Mr "R" had been removed from the classroom situation and had been temporarily placed in the Education Planning Unit. In preparing the report as required by the Managing Director and the guidelines set out by the Managing Director, it was said that the recommendation appearing at the conclusion of the report considered the following points:

· The offence proved was one of an act of indecency.

· The offence was not part of any pattern and would seem to be a "one-off" instance - this is supported by a psychiatric assessment offered by the court in March 1993.

· The offence occurred in early 1992 and the conviction recorded in May 1993.

· The sentence of a three year good behaviour bond expired in May 1996, with the Probation Service discontinuing supervision in August 1994.

· There have been no further known complaints against Mr "R".

· Mr "R"'s teaching role did not put him in contact with people below the age of consent.

· Since his demotion and transfer to another College and his subsequent transfer to the Education Planning Unit, Mr "R"'s conduct and service had been satisfactory. Mr Ryan then made a recommendation in the following terms: It is considered that there is no reasonable concern that Mr "R" will cause a breach of the duty of care owed by TAFE New South Wales protected students. It is therefore recommended that Mr "R" be reinstated to his position of teacher of social science/communication at … College of TAFE.

16 Mr Ryan's report was considered by the Managing Director of TAFE. It was decided that Mr "R" should be permanently employed on duties other than teaching and that he should not come into contact with students as a result of his professional duties in New South Wales TAFE.

17 In his affidavit, Mr "R" stated that, although he had not taught students for some time, he was encouraged by Mr Ryan to make an application under the Prohibited Employment Act for a declaration that he not be regarded as a prohibited person in relation to the offence to which he pleaded guilty in the Local Court in 1993.

18 The applicant stated in his affidavit that, to the best of his knowledge and belief, during the period of his employment as a teacher there had been no complaints made against him which had suggested that his relationship with students had been inappropriate. He believed that he was a fit and proper person to be a teacher and that he did not pose a risk to any person under the age of 18 years who might be enrolled in a class in which he was a teacher or with whom he would have to work in the performance of his duty as a teacher.

19 In his oral evidence in chief, Mr "R" stated that, at some stage in the future, he would seek to return to a teaching position in TAFE. In relation to the School of Business and Administrative Studies in which he had taught, he expressed the view that there were very few courses in that area at certificate level which involved students of pre-HSC age. He said that the vast majority of courses he was involved in teaching were at the Associate Diploma level and, although there were some courses which would involve pre-HSC students, most courses he taught required the attainment of a Higher School Certificate or equivalent or appropriate work experience. He estimated that, during his last teaching post held in 1997, less than 10 per cent of the students would be under the age of 18 years, while it would highly unlikely that persons of the age of 16 would be admitted to the courses he taught.

20 The applicant was asked in his evidence in chief about discrepancies between statements he had made that there was only one incident of indecency when there were other indications that there were a number of instances of indecent behaviour in which he was involved. The applicant stated that he had pleaded guilty to one charge but it was not correct that there had only been one incident. He accepted that he had told the Probation Service that there was only one incident when there were in fact more, and also accepted that he had minimised the number of offences that had actually been committed. Asked to comment on that history, the applicant stated: At the time I was so scared of the whole situation I was so distraught by the whole situation, so incredibly scared of the outcome, potential outcomes of the whole situation that I pleaded not guilty. This was because it was so contrary to every thing I stood for, I kept saying that but I can't say, you know, that was the situation. Yeah, that was the situation. I was so scared of the whole thing. I was so shattered by the whole incident that I almost didn't know what I was saying at the time. He said that so far as he was aware there had never been any other allegation of sexual assault or sexual abuse of a young person that had been made against him.

21 Mr "R" was closely cross-examined on this evidence and the number of times on which he said that there was only one incident. In cross-examination the applicant accepted that there were one or two incidents but no more than two. When asked why he had touched the young victim, he said that he had asked himself that question on many occasions and had still not come up with a satisfactory answer - he simply did not know. He thought it was an impulsive action but he had difficulty accepting that he found the girl sexually attractive. He said that his attraction to her was because she was a nice young lady, a nice young person. He accepted that being a nice young person was not something that should create an impulse in him to touch a child's breast. He could not say what it was that caused him to have the impulse to touch the child but he was unable to accept that the impulse was a sexually driven impulse because he did not know what the impulse was in fact. He accepted that he acted in a sexually motivated way in touching the young girl's breast.

22 The applicant agreed that he had been having an extra marital affair with the victim's mother for two or three years at the time of the commission of the offence in 1992. During that period he had become acquainted with the child but seemed to go to some lengths to avoid any suggestion of having close contact with the child or to accept any suggestion that he frequently attended the mother's house in order to see the child. During this cross-examination, the applicant retreated to the position of saying that only occasionally he saw the victim or very rarely saw the victim or sporadically saw the victim because the main purpose of the visit was to see the mother. He accepted that the girl would have known that he was her mother's boyfriend. In relation to the period of the offence, the applicant accepted that he was babysitting the young girl from about 5.30 pm to approximately 10.30 pm every Monday while the victim's mother attended a TAFE course. He conceded that as a teacher he was aware of the significance of relationships with young people and the importance of avoiding compromising situations. However, he did not accept that during his child minding duties he was acting in a parental role although he accepted that if she wished to leave the house or go out with a boyfriend or something like that he would have to intervene. He also accepted that it may be necessary for him to discipline her by way of reprimand if she was doing something inappropriate. Despite this, he did not accept that he was in the position of a de facto parent. The applicant said that, in addition to the babysitting visits, he also frequently went to the house and therefore it was not accurate to say that it was a very rare occasion that he saw the child. He regularly saw the child during 1992. Again, during the evidence the applicant emphasised that he was there to see the victim's mother and not the "young lady."

23 The applicant accepted that he had told his probation officer that the child had "made a pass at him" to which he had responded. He believed that this was a true statement. In his view, the young lady "encouraged" him. He could not recall if he was encouraged by words or by something that she did.

24 The applicant admitted that when he was initially confronted with the allegations by the victim's mother he denied the allegation. When he consulted his own doctor over the allegation he also told the doctor that the allegation was false. When his doctor referred him to a psychiatrist, Dr Haig, he also told Dr Haig that the allegation was false. He also denied his actions when first spoken to by the police.

25 The applicant also accepted that he had sought a reference from the victim's mother, without telling her that it would be used in the court case regarding her daughter's allegation. She had provided a reference but said she had confined it to her experience of Mr "R" as a person and a teacher at TAFE. The applicant said that he had obtained the references because his solicitor had asked him to: he did not know what use would be made of them nor that they may well be used in court. He denied that it was questionable for him to ask the victim's mother for a reference without telling her the purpose for which it was to be used.

26 The applicant was further pressed on whether there were numerous occasions rather than just one or two occasions of indecent assault to which he had admitted in his evidence. He accepted that he had not told Dr Westmore that there was more than one occasion when consulting Dr Westmore for the purposes of having a report for the present proceedings. He also initially told Dr Allnutt (the other psychiatrist he saw at the request of the respondent Commission) that there was only one instance. During the course of questioning by Dr Allnutt, he accepted that there might have been another occasion.

27 It was put to the applicant that the details of the offence are things that he would not have forgotten, to which he replied that the details were something he had deliberately tried not to think about. He accepted that he told the Probation Service that there had been only one occasion, that he was ashamed of what he had done and that he had stopped immediately, when in fact there was more than one occasion. He denied that he was still trying to minimise the offence. The applicant did not accept that he would lie in order to minimise the facts where it suited him but accepted that his recollection of the number of offences had changed during the course of the case.

28 It was put to the applicant that he had a predisposition to reacting to stress in an extreme way such that in 1992 he made some attempts at suicide. The applicant said that he had made two half hearted attempts and that he had once stood on a road on an overhead bridge and threatened to jump but was stopped by another person. He agreed that this was an extreme reaction to the stress he was then feeling but he did not believe that he had a general tendency to be an anxious person who had a poor reaction to stress.

29 It was drawn to the applicant's attention that a condition of his bond was to continue counselling under psychiatric care as required but that had not been continued. In re-examination, he explained that he was not required to continue that counselling and he had discussed that matter with the Probation and Parole officer.

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.

32 In cross-examination Mr Bossina said that when he spoke to Mr "R" about the offence in 1993 his impression was that there was only one incident of indecency. He had not been provided with the statements of the victim and her mother until just before he gave evidence in this matter. He accepted that consideration of those documents gave a worse impression of the nature of the offence than he was initially led to believe. Mr "R" had not informed him that the victim was the daughter of a woman with whom he was having an affair. In re-examination, Mr Bossina said that he may well have been confused about how he formed the impression that this offence had occurred with a student of TAFE. He had become aware of the age of the victim, not in 1993, but last year when Mr "R" had asked him to become a witness.

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.

34 In oral evidence, Mr Kintominas said that he had read statements made by the victim, her mother, a Record of Interview with the applicant and other court documents which were before the Local Court, and there was nothing in those documents which would cause him to change the views he had expressed about Mr "R". Mr Kintominas said that the age of students that Mr "R" would teach were generally people from high school leavers, about 17, up to their late 20s but could be much older. It was his belief that less than one per cent would be under the age of 18 and there would be no one under aged - that would certainly be rare.

35 In cross-examination, Mr Kintominas said that Mr "R" had told him about the offence last year when he asked him to give his evidence for this application. He made clear that the person was under age, that is, someone under 16 years old but did not tell him how many times the offence occurred. Mr Kintominas had not formed any impression about how many times the offence had occurred. Mr "R" had told him of the nature of the offence, saying that he had touched the girl's breasts. The first time he became aware that there was more than one occasion was when he read the court documents. Mr Kintominas repeated in cross-examination that he had not seen nor had he been made aware of any complaint of Mr "R" acting inappropriately with students. When asked to accept that inappropriate behaviour would be unlikely to happen in the presence of anybody, Mr Kintominas said he did not believe so. As Head Teacher, things were reported to him regarding classroom members and anything to do with a teacher's classroom came back to him. He did not get any feedback against Mr "R" of "anything of this nature".

36 Ms Peggy Knott, employed by the New South Wales Department of Education and Training as a part-time ESL teacher, said that she had known Mr "R" for the past 20 years. She had first met Mr "R" as part of her extended family support group, when his wife and two older children were part of a playgroup which she attended with her daughter. At that time, as young people with young families, they related regularly and socially in supportive roles. She had maintained her relationship with Mr "R" and his wife since those early years. Ms Knott was aware that Mr "R" was convicted in 1993 of indecent assault on a person under 16 years of age and she had discussed the matter with Mr "R". Ms Knott then stated: From my discussions with [Mr "R"] and my observation of him, I have formed the view that the actions which led to his conviction were an error of judgment for which he is truly ashamed. The repercussions of his actions have had a devastating affect on his career, his family situation and his social interaction. Mr ["R"] admits that there can be no justification for his actions and acknowledges that they were wrong. I have formed the view that the actions were out of character and unlikely ever to occur again. Because of my view and the remorse that I have observed, I felt confident in allowing my daughter to have contact with Mr ["R"] during her teenage years. That contact included him driving her to school, attending his family and sleeping over at his home, together with delivering messages between families. I have never felt that [Mr "R"] was a threat to her in any way and, by her comments to me, I have formed the view that she had held him in high respect as the father of one of her best friends and a family friend.

37 Ms Knott had provided a reference to the Local Court in 1993. In oral evidence, Ms Knott confirmed that she had read statements from the victim, her mother and Mr "R", and other documents placed before the Local Court but those documents had not changed the view that she had expressed about Mr "R". In cross-examination, Ms Knott accepted that she had only been told of one occasion of Mr "R"'s offending behaviour and that, after reading the court documents, it was clear that the victim claimed that there were a number of occasions on which she was indecently assaulted. Ms Knott said she believed that Mr "R" had put himself in an "unwise situation" and she accepted what Mr "R" had said to her about the number of incidents because of what she knew of him over a period of 20 years. Ms Knott had given her evidence particularly about Mr "R"'s personal situation and, although he had never babysat her daughter, her knowledge of the applicant led her to conclude that her daughter was perfectly safe in his care. She had known Mr "R" and been aware of the situation for so long and knew the ramifications for his life: Mr "R" "realised that he made a mistake - but he has definitely no intention of ever committing anything like that again". His behaviour with the victim was conduct which she would not ever have expected of him.

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".

39 In cross-examination, Ms Ciardi said that she was first informed about the offence in 1997 by Mr "R". He told her that the age of the child involved was 13 years but he did not indicate the number of occasions of assault although she had the impression that it was only the one occasion. She now knew from the court documents that she had read only recently that her first impression was incorrect. She accepted that the behaviour was not consistent with the person she knew or with his character.

40 Ms Elizabeth Paine had known Mr "R" since approximately 1986 and had first met him when she undertook part-time teaching duties in the school of Business and Administrative Services at TAFE. From time to time, she "team taught or shared classes" with Mr "R" and then had renewed their acquaintance when Mr "R" transferred to another college. During the many years of her acquaintance with Mr "R", Ms Paine said she came to know him both professionally and socially. Because she had regularly team taught with him, she had the opportunity to observe his teaching methods and the relationships he had with students. She formed the view that Mr "R" was an extremely dedicated teacher, enthusiastic about his own studies and shared that enthusiasm for his subject matters with his students. At no time did she have any reason to believe that his interest in his students was anything but academic and his behaviour was, to her observation, always of a high professional standard. She was aware from discussions between students that Mr "R" was held in high regard by them. She was aware of Mr "R"'s conviction in May 1993 and had an opportunity to discuss the matter with Mr "R" and had formed the view that he acknowledged that his actions were inappropriate and was truly remorseful for his conduct.

41 Ms Paine then referred to the pressures that Mr "R" was under at about the time of the offence: At about the time that [Mr "R"] was convicted he was employed as Head Teacher of Business and Administrative Studies at … college. At the time I observed that [Mr "R"] was not confident in his ability to perform the administrative duties associated with the role of Head Teacher. I was aware that, at that time, the college Principal was extremely critical of Mr "R"'s capacity to fulfil his Head Teacher duties. I also noticed that Mr "R" suffered emotionally and otherwise from the constant rebukes that he received from his Principal. Mr "R" confided in me on many occasions that at the time he felt overwhelmed by his circumstances. Following his conviction [Mr "R"] transferred from … college as Head Teacher to … college as a teacher and continued teaching for some time until he commenced administrative duties. As a teacher it was my view that [Mr "R"] appeared to be far more confident and comfortable in his role and much of the distress he had previously exhibited appeared to be lifted from him. In the many years that I have known [Mr "R"] and observed his involvement with students and his relationship with children through my speech and drama studio, and acknowledging his conviction, I formed the view that the matters which led to his conviction were out of character and, given his remorse for those actions, most unlikely to ever occur again. Throughout the period I have known [Mr "R"] I have never observed any action of his which has caused me to be concerned for the welfare and safety of children in his care. I believe that [Mr "R"] is a fit and proper person to be a teacher in TAFE and believe [Mr "R"] does not pose a risk to the safety of persons under the age of 18 years who might be placed in his care in the course of his employment with TAFE.

42 In her oral evidence, Ms Paine clarified that she had only a very basic understanding about Mr "R"'s particular case and that their social contact was work based rather than at home, socially and with his family. She had also seen the various documents, including the victim's statements, that were placed before the Local Court in 1993. Her recollections and views of Mr "R" were mainly formed when they worked together and although they remained in contact it was her earlier observations which were the basis of her evidence about Mr "R" and his character. During that time she had never seen Mr "R" use his position to obtain any advantage nor did she see him abuse his position.

43 In cross-examination, Ms Paine said that she had been informed about the incident in an email from Mr "R". She was told that he had been involved in an offence of a sexual nature with a 13 year old girl but he did not say how many times the activity had occurred. She had not formed any view as to how many occasions Mr "R" had offended against the young girl but, having read the material before the Local Court, she thought it was completely out of character for the man that she knew. Having read the court material, she did not have a view that it was any worse an offence than she had previously thought, although it did clarify it for her. 44 Apart from expert evidence relied on by both sides, in the form of psychiatric reports, the respondent Commission filed affidavits from the victim who is now 23 years of age, and from her mother. During the course of the hearing, I raised with the respondent Commission whether it was necessary to bring the victim and her mother to give oral evidence in this case in circumstances where ten years had passed and the young girl was now a young woman. I was told by counsel for the respondent Commission that an issue would arise as to the number of occasions the applicant had touched the young girl, with her evidence being that it happened on numerous occasions, if not on every occasion that he looked after her while her mother was absent at TAFE lectures. It was said that the very question of risk assessment and the likelihood of recidivism were integrally linked to the question of how many times this behaviour occurred and whether the applicant was being forthright about it.

45 I was not convinced that it was necessary to call the victim in order to have that matter properly raised in the hearing, nor was I convinced that the number of occurrences of touching would necessarily be advanced by calling the victim: the importance of this matter did not assume the proportions contended for by the respondent Commission, especially in the light of the expert evidence and the provisions of s 9(4) which require the relevant tribunal to be satisfied that the applicant does not pose a risk to the safety of children. As the evidence stood, without calling the victim, the best evidence for the applicant in cross-examination was that to the best of his recollection there were one or two occasions but no more than two to the best of his knowledge. The victim's affidavit evidence confirmed the statement made in 1993 to the police that the touching had occurred on a number of occasions: it was unlikely that her memory of these matters would be improved after an interval of ten years. After discussion, Mr MacMahon, representing the applicant, announced that he would not require the victim and her mother for cross-examination and the affidavit could simply be read. In all the circumstances, that seemed to me to be an appropriate course bearing in mind the nature of the evidence, the nature of the debate in the proceedings and weighed against the undesirable course of bringing these two people to Court to relive an incident which had occurred some ten years earlier in their lives - undoubtedly one which they would both prefer not to have to rake over in the witness box.

46 In her affidavit evidence, the victim told how, during 1992, the applicant was her babysitter while her mother was attending TAFE lectures. She confirmed the truth of the contents of the statement she had made to the police in December 1992. She said that these events had occurred with Mr "R" sitting silently in the dark, and explained her attempts to move away from his hand while she was lying in bed but being confused and not knowing what to do about his touching of her. She did not know how many times the assaults happened but she was sure it happened on most nights that he was alone in the house with her. In her statement to the police in December 1992, she said that Mr "R" had known her and her mother for about four years and had slept over at her house on a number of occasions and visited regularly. She described Mr "R" as her "mum's boyfriend". She had not said anything to her mother because she was scared, but ultimately did raise it on a few occasions with her mother and complained about Mr "R" touching her.

47 The victim's mother stated in her affidavit that she did not have a romantic relationship with Mr "R" until December 1989 or January 1990, after breaking up with her husband in October 1988. Mr "R" had spoken to her after he had been charged and, at one stage, told her that it was a requirement that he see a psychiatrist and that he be assessed, and that he needed to provide a reference or a statement from people knowing him saying how they knew him and what they thought. While she did not take what he said at face value, she agreed to write him a reference but kept it, as she described it, "fairly clinical and referred to TAFE". She said that Mr "R" did not tell her that it was to be presented to the court. In her conversation with Mr "R", he lamented about the problems he had with the charge but he never asked about her daughter, her welfare or anything else about her - "it became as though she did not exist". He had never apologised for the way he made her feel or for what he had done to her daughter, and there was never any sign that he was sorry for his behaviour although he obviously regretted its outcome. She found it very hard to believe that Mr "R" was doing these things to her daughter because of his involvement and position in the community. She had asked Mr "R" at least three times after complaints from her daughter but on each occasion he denied the allegations.

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.

50 A project officer employed by the respondent Commission, Mr Craig Warwicker, swore an affidavit dealing with the steps he had taken to investigate the applicant's background and history. In September 2001, he had notices served under s 14A of the Commission for Children and Young People Act 1998 on the Director of Public Prosecutions, the Department of Corrective Services and the New South Wales Department of Education and Training. As a result of that notice, a number of documents had been produced and were annexed to his affidavit.

51 Under s 14A of the Commission for Children and Young People Act 1998, the Commission may direct any Government agency to provide it with information relevant to an assessment whether the applicant poses a risk to the safety of children for the purposes of preparing submissions under s 9 of the Prohibited Employment Act and Section 16 of the Child Protection (Offenders Registration) Act 2000. Further, the section authorises a Government agency to which a direction is given under this section and requires the agency to provide to the Commission for Children and Young People the information sought in the directions. Mr Warwicker had also made enquiries of the Department of Community Services as to, firstly, whether Mr "R" was known to them as an abuser, and secondly, whether his children were known to the Department as being abused by Mr "R". Both enquiries resulted in a negative response - he was not known to the Department apart from his 1993 conviction. It can be seen that a thorough search of public records was made in relation to the applicant.

EXPERT EVIDENCE 52 Solicitors acting for the applicant obtained a report from Dr Bruce Westmore, a forensic psychiatrist. Dr Westmore recorded the history given to him by the applicant and noted that he also had additional documentation, including the application to the Commission under s 9 of the Prohibited Employment Act, the affidavit of the applicant of 6 September 2001, transcript of proceedings before the Commission where an interim order was made and the Facts Sheet before the Local Court. Mr "R" told Dr Westmore that in May 1993 he was charged with indecent assault involving a 13 year old girl who was the daughter of one of his friends. He then made the following note on the history given to him by Mr "R": The charges related to incidences where [Mr "R"] touched a young girl on the breast area, inside her clothing. He said that he originally pleaded not guilty to the matter but later pleaded guilty and was sentenced to good behaviour for three years.

53 During the consultation, Mr "R" told Dr Westmore that he had asked himself repeatedly why he had behaved in such a way towards this young person and said he felt it was a period of his life where he was under "enormous pressure". He went on to say that he believed that his behaviour was "abhorrent". He said that to describe his behaviour as simply being "out of character" was insufficiently strong to describe what he did. The doctor noted that Mr "R" was able to talk about the wrongness of his actions. When asked to explain how his behaviour was wrong, he said: "Because of my age and the person, because the person was a young lady. I should never have touched anyone like that. It's against everything I have been taught and what I believe". He believed that he may have injured the child by his actions and acknowledged that in some situations children may be hurt physically but he emphasised the mental damage which a child might experience stating: A child is in a position where they are with an adult who has power over them. During the consultation, Mr "R" apparently became tearful and distressed stating: "I live with that". In relation to Mr "R"'s psychosexual history, Dr Westmore noted that he described himself as being sexually happy and fulfilled in his marriage and reporting that he is comfortably heterosexual.

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.

55 In oral evidence, Dr Westmore had his attention drawn to the victim's statement to the police that there were a number of incidents of assault and that the applicant had given evidence in these proceedings that there were two incidents but he could not rule out the possibility of further incidents: he was asked whether this would change the opinion he had formed. It is of interest that this question presumes that Dr Westmore was told that there was only one incident but the report, an extract of which I have set out in par 42, indicates that Dr Westmore was told by the applicant that the charges related to "incidences where [Mr "R"] touched a young girl on the breast area". This was also clear from the Facts Sheet which had been provided to him although, in the final part of the report, Dr Westmore speaks of no forensic history "apart from the one incident involving the thirteen year old child". Nevertheless, Dr Westmore said that a single incident and only one incident is of less concern than a series of incidents. He said that, if the other history had not changed, that is, that there was one victim and that the offence had occurred in the context of a interfamilial setting and also on Mr "R"'s own psychosexual history, he would probably move his opinion from "minimal to low risk", noting that the respondent Commission's report from Dr Allnuttt described the applicant as being low risk.

56 Dr Westmore confirmed that the greatest risk of recidivism are those patients with the condition of paedophilia and within that group the sub-group with the greatest risk of recidivism are same sex offenders - usually males. In Dr Westmore's view, relying on the honesty and truthfulness of the applicant's psychosexual history and his other demographic features, "his overall risk, statistically and clinically, has to be low".

57 The positive factors in the applicant's history were identified by Dr Westmore as being: one reported victim; the late age of onset of the offending behaviour; the relative stability in his life; the absence of mental illness; the absence of a personality disorder, particularly the absence of anti social personality disorder; the fact that the applicant does not have paraphilia (sexual perversion), particularly paedophilia; the emotional issues, his tearfulness, which was interpreted as being feelings of regret, remorse and guilt; his personal expressions and feelings of shame; his insight into the wrongness of his behaviour; and his understanding of how it may have impacted on the victim. All of those factors were described as "really … quite good, positive prognostic features regarding his future risk of re-offending".

58 Dr Westmore was closely cross-examined by counsel for the respondent Commission. Dr Westmore accepted that, in assessing whether a person poses a risk to children, not just a sexual risk but any risk, the presence of paraphilia did not necessarily preclude risk. The fact that there had been one occurrence with one victim meant that risk could not be precluded but he thought a psychiatrist would agree, and Dr Allnutt had expressed it in his report, that one cannot make predictions about any person because they are reliant to a large degree on previous behaviour. Psychiatrists use previous behaviour to help them form predictions about future behaviour. Dr Westmore also accepted that the prediction of dangerousness is something that had caused psychiatry quite some concern over the years. He also accepted that some persons who suffer from paraphilia such as paedophilia may not act upon their impulse or urges and can control their feelings.

59 Dr Westmore also accepted that the clinical assessment that he had performed had relied very heavily on the applicant's self report. He said the way the applicant had put forward the offence was that he had acted upon some sort of impulse, but Dr Westmore said that it did not necessarily follow that an impulse carried out in a sexual manner meant there was some sort of sexual attraction. He said that the touching of her breast was obviously a sexual act but, on the history that he had received, his impression and feeling was that it is and was more of an impulsive behaviour than a primarily sexually driven behaviour. 60 The risk of recidivism was increased if there were many occasions over a period of six months rather than twice or a bit more than twice. Dr Westmore said that the number certainly increases the concern about risk, and increased the issue about the sexualised component of behaviour. It meant that his action was more likely to be sexually driven behaviour because of the frequency of the acts. When asked whether the number of occasions raised the real possibility that the applicant may be suffering from paraphilia, Dr Westmore said that it raised the "index of suspicion" but if he suffered from paraphilia of a paedophile type he would have expected to have more complaints. There may have been a sexualised interest in this particular young woman not necessarily extended to a whole range of other people.

61 Dr Westmore accepted that incestuous offenders are referred to as interfamilial, while general paraphiliacs or persons suffering from paedophilia are usually referred to as extrafamilial offenders. The literature supported the view that persons who offend against family members are regarded as at a lower risk level than those who offend against strangers. However, the applicant in this case would not be placed in the extrafamilial but in the interfamilial category. That was because there was a relationship with the victim's mother: presumably the child perceived him as being a father figure of some type, and it was in that context that Dr Westmore understood the offending behaviour occurred. Extrafamilial behaviour generally occurs with strangers and this child was not a stranger to this man. That assessment might change if there was not a father/daughter relationship but Dr Westmore remained satisfied with his categorisation of the applicant.

62 Dr Westmore was questioned regarding his familiarity with an article authored by Hanson and Bussiere which had looked at 61 studies providing information on nearly 29,000 offenders in the context of predicting recidivism in sex offenders. Despite counsel's enthusiastic urgings that this was one of the leading articles on the prediction of recidivism of sex offenders, Dr Westmore was more restrained but accepted that it was one of the more current articles and was a comprehensive article on the topic. However, he did not agree with all of the content of the article. Dr Westmore agreed that sexual interest in children was identified in the article as a significant indicator of recidivism amongst sexual offenders. Dr Westmore pointed out, however, that there is a difference in having a sexual interest in a particular child as opposed to having a sexual interest in children generally. That could be quite significant. Dr Westmore pointed out that there had been no other complaints about Mr "R", although it was not uncommon for persons to go for some years without any offences being recorded and when caught, admit to other offences. People with paraphilia usually acted on their urges because that was their modus operandi - the way they expressed themselves sexually. Most people act on their sexuality, including their paraphilia.

63 Dr Westmore said that he could not rule out that Mr "R" had been involved with other children prior to or subsequent to this incident. Nor could he rule out there may have been impulses in respect of other children, including teenagers.

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.

66 Although the applicant does not suffer from paraphilia, that did not mean he was free from risk of recidivism. However, Dr Westmore said that another article referred to by the respondent Commission would rate the absence of paraphilia as resulting in his risk of recidivism being low or "probably negligible". Although Dr Westmore had slightly adjusted his view on the risk of the applicant, he had not moved from his overall opinion and would place him in a low risk category, but nevertheless a risk.

67 While the Hanson and Bussiere article did not rate a good and close relationship with family of origin as a factor in predicting recidivism, Dr Westmore said that if an individual has a poor relationship with hisfamily of origin, it may suggest some problem with him or his family. It is obviously one of the factors which is taken into account, because the absence of a personality disorder is of some predictive significance. This issue could not be excluded from psychiatric assessment and was a critical part of such an assessment. This was so regardless of what was in the article and what sub-categories the article regarded as relevant to recidivism. Although the article rated employment lowly as a factor in predicting recidivism, Dr Westmore regarded it as significant that the applicant had a very good occupational history. He said that he did not agree with everything in the article and, from a clinical perspective, he thought employment stability was a positive. Dr Westmore noted that the strength of family relationships and employment stability were there when the offence was committed and that highlights the aberrant nature, the unanticipated nature of his behaviour. Dr Westmore was of the view that a statement in the article, that psychological maladjustment has no relationship to recidivism, was a silly statement because, in his view, it clearly does have a relationship. Paraphilias, he said, have severe, extreme psychological disorders, termed a psychological maladjustment, and that psychological maladjustment is highly co-related to recidivism.

68 From his report, it was clear that Dr Westmore had been asked to express an opinion whether the applicant suffered from any condition that might make him a risk in regard to being a teacher, and he had taken into account his current employment was as a teacher of adults or young adults. However, Dr Westmore rejected the suggestion that the applicant may present a higher risk in different situations. It would not matter if he was working as a teacher in a girls' school because Dr Westmore's assessment of the applicant's level of risk was based not on where he teaches but on his psychiatric position, and the Doctor's assessment of his psychiatric position was that he represented a low risk. Even if he was working in a girls' school which gave him opportunity (that may be relevant to some people), the Doctor's view was that this offence was an abhorrent behaviour in this applicant and not something which forms an integral part of his psyche. It was something which is not part of him and he regrets and is embarrassed by what he has done and, because of those reasons, his risk of repeating an offence with any young girl was low. Dr Westmore's view was not altered by the fact that there may have been many instances of the offence, because in this case the offence was victim specific. Dr Westmore was of the view that the applicant represented a low risk to the general young people population. While it could not be excluded absolutely that the applicant would never behave again in this way, all of the history gave some indication as to what level of risk the applicant presented.

69 Dr Westmore rejected the suggestion that at age 51, with an absence of known re-offence in the last ten years, was of more concern and a significantly different situation to a person, say 27 years old now, who had not offended for ten years. Dr Westmore did not believe that such an approach was relevant. In his view, what was relevant was, if the offence had occurred when the applicant was 21, it would be more serious than had the offence occurred when he was 41, because the younger the actual offender the more important it is. This offence occurred so far along the applicant's life that it supports the proposition that it was an aberration. It was not something that was an integral part of this man.

70 While the Hanson and Bussiere article regarded denial as being unrelated to sexual recidivism, that was another proposition with which Dr Westmore could not agree. Denial is more likely to be positively associated with recidivism, for example, where denial is generated from a primary desire to avoid culpability. If the denial is generated by feelings of shame, that is probably less significant. In this case, there was no denial of the offence but there may be a denial as to the number of incidents involved. Dr Westmore accepted that this could be relevant and when he saw the applicant his responses were consistent with a man who was ashamed and embarrassed by what he had done.

71 Dr Westmore also accepted that it was significant that the applicant touched the young girl's breast or rubbed his hand on her breasts on numerous occasions but did nothing more. He thought it was obviously a sexual act but very different from any other sexual acts - in a sense it was a lesser sexual act. The applicant may have waited for a response and that fact, that he did not go further when the response did not come, might be seen as a positive step, especially in that he did not proceed somewhere else in a forceful way. Overall, Dr Westmore's view was that his behaviour during this offence was an aberration. It was hard to frame why the man behaved in that way but it was inconsistent with his personal profile. He could not absolutely exclude him from acting like this again, but Dr Westmore still believed his risk was low.

72 The defendant obtained a report from Dr Stephen Allnutt, a forensic and general psychiatrist. Dr Allnutt took an extensive personal history from the applicant and noted that he specifically denied any fantasies of sexual arousal involving children. In relation to this offence, the applicant spoke of touching the young girl's breasts on two occasions but denied other instances. The applicant said that he felt embarrassed, ashamed and dreadful and had no contact with the victim since his conviction.

73 Dr Allnutt expressed the following opinion: In my opinion the applicant does not present with symptoms consistent with major mental illness. Paraphilia is diagnosed psychiatrically when there are sexually arousing fantasies, urges or behaviour involving children, inanimate objects, humiliation, suffering of others or self. These phenomena have to be present for at least six months. Paedophilia is diagnosed when a child aged 13 or under is involved. When a child older than 13 is involved it is regarded as Hebephilia. That is sexual attraction to adolescents who manifest secondary sexual characteristics. The applicant denies recurrent fantasies or urges for a six month period. This means that a diagnosis of paraphilia cannot be made based on his report. However, such a diagnosis cannot be definitively ruled out based on his self report alone. 74 Dr Allnutt stated that, if the offence had occurred on only one occasion, it could be regarded as an impulsive act and unlikely to be driven by a paraphilia. However, he noted that the victim's report was that such behaviour occurred repeatedly over a period of months and that increased concern. Evidence of offending that occurred repeatedly in a course of conduct persisting for some months increased the likelihood of paraphilia of a hebephilic nature. Dr Allnutt stated that there was no evidence of personality disorder and specifically noted the applicant did not present with symptoms of anti-social personality disorder or psychopathic personality disorder.

75 Like Dr Westmore, Dr Allnutt rejected psychometric tests as being reliable predictors of sexual recidivism and for that reason he had not utilised these types of instruments in his assessment.

76 Dr Allnutt was asked to specify the factors taken into account when assessing the potential for a person with a conviction of a sexual offence of re-offending and to relate those factors to Mr "R"'s offence. Dr Allnutt stated that risk assessment generally involved the identification of risk factors; variables that have been shown to correlate with future offending behaviour. There were two broad approaches to risk assessment: clinical interview and actuarial assessment. Clinical interview allows for flexible exploration of dynamic and static risk factors. This approach also attempts to reconstruct vignettes of previous offending scenarios to identify repetitive themes, contextual and situational factors. However, the quality of the clinical assessment is variable and dependent on the clinician's expertise. It is open to conscious and unconscious bias. Actuarial assessment involves the application of a formalised, prescribed risk assessment instrument which is less prone to the variability of the clinical assessment. He referred to the Hanson and Bussiere article in stating that actuarial assessments are considered to be more accurate than clinical methods. In noting that there were shortcomings with the actuarial assessment, such that an individual's risk could remain the same no matter what other changes occur with time, which in fact reduces the risk and, further, that actuarial tools assign probabilities to groups and cannot identify the presence or absence of a property such as "recidivism" in an individual.

77 In Dr Allnutt's view, it was generally accepted that the assessment of risk, if undertaken, should involve an actuarial assessment modified by clinical judgment. Ultimately, the process could only predict the likelihood of groups to re-offend, not individuals. Further, there still exists no predictive paradigm that is accurate to the extent that incorrect decisions are avoided. It was not possible to pick which individual within the group will or will not re-offend.

78 Dr Allnutt stated that there were studies that indicated that the rate of recidivism amongst sexual offenders generally reduces over time and that the maximum rate of recidivism occurs within the first five years after release and then tapers off; 26 years after release the rate of recidivism is dramatically less. There were, however, difficulties with this approach and a specific group of those offending against extrafamilial children showed only a modest decline in recidivism risk until after the age of 50 years, as compared to offenders against adults and incest offenders. There was also the difficulty of the lack of reporting of instances of molestation.

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.

80 In oral evidence, Dr Allnutt said that in his view there was no relationship between shame and embarrassment and recidivism or non-recidivism. Sexual offenders, especially people who offend against children, tend to be a more pro-social group and tend to feel guilt, embarrassment and shame about the behaviour, but some of them continue to commit it. That is not to say that shame and embarrassment are not important factors - it may be pleasing in the sense that it may suggest that the person is not a psychopath and has some subjective response and insight into what the person had done, but it did not necessarily correlate with increased or decreased risk of recidivism. Even a person who did not show shame and embarrassment may never re-offend and, while these were pleasing indicators, it was very difficult to work out whether they are genuine expressions or not. Frequent interaction with the patient and more talking and more understanding leads the clinician to a better sense of comfort that such signs are genuine. 81 In relation to the significance of denial and minimisation in sexual offending and in offending as a whole, Dr Allnutt stated that the issue had preoccupied criminology and forensic psychiatry because it seems so intuitively to be important but it was interesting to note that, when regard is had to factors empirically that may predict recidivism, denial and minimisation do not show a relationship between recidivism or non-recidivism. They are factors that seems to be neither here nor there and that is really because there are multiple motives of denial. Where people are facing very important consequences on their lives and depend on decisions that are to be made, it is natural to minimise and to deny an illegal context.

82 Dr Allnutt placed a lot of importance and emphasis on the Hanson and Bussiere article not because it was "necessarily the be all and end all" but because it was probably the best objective data that was available. Like any research, it will in future be shown to have flaws but it was the best that was available other than subjectivities. Actuarial factors tended to be better predictors of recidivism than clinical assessment but the whole area of risk prediction was a vexing area for both the law and psychiatry. One of the difficulties was that the studies enable predictions to be made about groups but not individuals.

83 Dr Allnutt agreed with the proposition that offenders from outside the family tend to have a greater risk of recidivism than those within the family. Although Dr Westmore had regarded the relationship between the applicant and the victim as being intrafamilial, Dr Allnutt was of the view, on what the applicant had said about the lack of closeness of his relationship with the victim, that in this case the relationship fell somewhere in between intrafamilial and extrafamilial. In relation to under reporting of the offence, Dr Allnutt said, speaking generally, sex offenders tend to under report the rate of offending and that would not be uncommon.

84 There was nothing in the demeanour of the applicant or the way in which he responded to the questioning which suggested that his embarrassment and shame were other than genuine. Taking into account the clinical matters which he had discussed and the actuarial matters he had noted and applied them to the applicant, Dr Allnutt was of the view he was in the category of being a low risk of re-offending.

85 Besides tendering the Hanson and Bussiere article entitled "Predicting Relapse: a Meta-Analysis of Sexual Offender Recidivism Studies", the respondent Commission also tendered a short paper from Canada entitled "Age and Sexual Recidivism". The Canadian paper pointed out that not all sexual offenders are equally likely to re-offend and that the offender's age and type of victim should be jointly considered in applied risk assessment of sexual offenders. It was said that this will likely improve predictive accuracy. While on average the rate of sexual recidivism decreased with age, intrafamilial child molesters in the 18 to 25 year age were among the offenders most likely to re-offend. The highest risk period for extrafamilial child molesters was between the age of 25 and 35, with only modest declines in their recidivism until after the age 50.

ISSUES RELATING TO THE CONSTRUCTION OF THE ACT 86 During the hearing of this matter, a number of issues arose as to the proper construction of the Prohibited Employment Act. For the respondent Commission it was submitted that the object of the Act was to prevent "prohibited persons" from working in "child-related employment". The Act sought to achieve that object by, inter alia, making it a criminal offence for an employer to commence employing, or to continue to employ a person whom the employer knew to be a prohibited person (s 8(1)). Section 10 gives such an employer the option of transferring the person to employment which is not child-related employment.

87 The long title of the Act describes it as an Act to prohibit the employment in child-related employment of persons found guilty of committing certain serious sex offences and for related purposes. "Child" is defined to mean a person who is under 18 years of age. "Child-related employment" is defined to mean, inter alia, any employment that primarily involves direct contact with children where that contact is not directly supervised, of the kind set out in s 3(a), which includes in sub-section (iii), employment in schools or other educational institutions (not being universities).

88 Under s 5(1), for the purposes of the Act, a prohibited person means a person convicted of a serious sex offence, whether before or after the commencement of that sub-section. Section 5(3) defines serious sex offence as, inter alia, (a) an offence involving sexual activity or acts of indecency that were committed in New South Wales and were punishable by penal servitude or imprisonment for 12 months or more. Under s 6(1) a prohibited person must not apply for, undertake, or remain in child-related employment. Section 7 imposes certain obligations on employers to ascertain whether an employee is a prohibited person and s 8 prohibits employers from employing a prohibited person in child-related employment.

89 Under s 9(1), on the application of a prohibited person, relevant tribunals, (which by sub-section 2 includes the Industrial Relations Commission) may make an order declaring that this Act is not to apply to the person in respect of a specified offence. Section 9(4), for present purposes, requires the Industrial Relations Commission not to make an order under the section "… unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". Under s 9(5) the Commission, in deciding whether or not to make an order under the section in relation to the person, is to take into account a number of specified matters including the seriousness of the offence, the age of the person at the time the offence was committed, the difference in age between the prohibited person and the victim, the seriousness of the prohibited person's total criminal record and "… such other matters that the tribunal considers relevant". Section 9(7) requires the Commission for Children and Young People to be a party to any proceedings for an order under the section. Section 9(9) provides that orders under the section may be made subject to conditions.

90 The respondent Commission argued that the Act provided a two stage procedure: the applicant under s 9(4) must first establish that he is not a risk to children; if he overcomes that threshold, the second stage involves whether or not the Commission is prepared to exercise the discretion given under s 9(1) to make an order declaring that the Act is not to apply to the person in respect of the specified offence. 91 The respondent Commission submitted that the combination of s 6 and the complementary offence created by s 8, together with s 9(4), makes it clear that in its operation the Act creates an offence for a person who is a prohibited person to work in child-related employment and no person who is a prohibited person can work in child-related employment until they are granted an order under this Act. It was said that it therefore follows that there is a presumption that such persons are a risk and it is for the applicant to overcome the presumption and satisfy the Commission of the positive fact that they are not a risk. It was important to understand that the test was not whether the applicant is a risk, but rather that he establishes that he is not a risk to the safety of children; until that threshold is crossed to the appropriate standard, no order can be made by any tribunal. That is the first stage of the process under the Act and only when it is crossed and satisfied does the Commission get to consider the discretion to grant or refuse an order. The enquiry is not directed to risk to particular types of children, nor is it directed to risk in a particular type of employment - the applicant has to establish that he is not a risk to any child.

92 On the approach urged by the respondent Commission, if there was a minimal risk, then no order can be made. It was significant, so it was submitted, that the legislature had not inserted any qualifying words preceding the word "risk" such as "unreasonable risk" or "real or significant risk". The legislature had seen fit to use the term "a risk" which must mean any risk. When asked how a tribunal could ever be satisfied that there was no risk, counsel for the respondent Commission noted that these were not criminal proceedings and that the standard of proof was not beyond reasonable doubt but should be in accordance with the principles set out in Briginshaw v Briginshaw [1938] 60 CLR at 361-2. The Commission must be comfortably satisfied and actually convinced of the proposition that the person is not a risk. The Commission must be satisfied that there is not any risk which includes minimal or low risk but it need only be satisfied of that proposition on the Briginshaw standard.

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.

94 In this case there was consistent evidence that, in his role as a teacher in TAFE, the applicant would be rarely in contact with persons under 16 years of age. The operative age for the Act is under 18, but the evidence seemed consistent that rarely would the duties performed by the applicant involve him in coming into contact with people under the age of 18, although there are a number who may be 17. This was because of the status of the courses that the applicant taught and that usually students would have already achieved the Higher School Certificate or equivalent status; in theory, it appears that children as young as 14 years old could enrol in TAFE courses generally but would not enrol in classes in which the applicant was qualified to teach. At one stage in the proceedings, this evidence caused the respondent Commission to consider whether the applicant was engaged in "child-related employment" as defined by s 3, meaning any employment that "primarily involves direct contact with children where that contact is not directly supervised". It was ultimately submitted for the respondent Commission that, so long as there was some element of potential contact with children, as an element of the essential duties, that would be sufficient to satisfy the definition of "child-related employment".

95 Some consideration has already been given to the various provisions of the Prohibited Employment Act in both interlocutory and final proceedings. In "A" v The Commission for Children and Young People (No 2) (2001) 104 IR 119, the President, Wright J, in an ex-tempore judgment, dealt with an application for a stay of the operation of a prohibition under the Act, made pursuant to s 9(6). His Honour stated that the Commission was obliged to take into account the specific criteria set out in s 9(5), and in making a determination for a stay, the Commission was obliged to comply with the mandate in s 9(4), that is, not to make a stay order unless the Commission considers the applicant does not pose a risk to the safety of children (see par 22). His Honour also concluded that a stay order under s 9(6) could be made the subject of conditions pursuant to s 9(9). The essence of this approach runs directly counter to the submission for the respondent Commission that there is a two stage process which requires consideration to be given to s 9(4) first, and that conditions imposed pursuant to s 9(9) have no role to play in the course of whether or not an order should be made under s 9(4). In addition, it is quite clear, as a matter of statutory construction, that s 9(5) lays down the matters to be considered in the course of making a decision under s 9(4). There seems to be no reason whatsoever why a consideration of "such other matters as the tribunal considers relevant" in s 9(5)(f) might not lead to a consideration of appropriate conditions to be imposed under s 9(9). I am therefore unable to accept the submission that s 9 of the Prohibited Employment Act requires a two stage approach with conditions only to be considered after a determination made under s 9(4).

96 Given that the legislation takes away a fundamental privilege of the ability to work and pursue, in many cases, a profession, and also bearing in mind the very important protection to be accorded to young people, it is highly unlikely that the legislature intended to place additional barriers in the way of an applicant seeking a declaration that the Act not apply, other than the ultimate and understandable requirement to meet the test set out in s 9(4). There is nothing in the Act that suggests anything to the contrary. A person who has, because of past criminal conduct, had his right to work in child-related employment removed by statute and who seeks to use the provision of that same statute to obtain an order that the Act should not apply to him, should not have to face artificial barriers constructed by a convoluted approach to statutory construction when there is the strength of the protection provided by s 9(4). As Wright J said in "A" v Commission for Children and Young People, the legislation is not intended to impose an additional punishment on a person guilty of a criminal offence of a sexual nature, rather it is intended to provide the means of identifying such offenders to the relevant authorities and, where relevant, their employers and to eliminate possible risks that such persons might pose to children. That purpose is not achieved by adopting an approach to statutory construction which places unwarranted barriers in the way of an applicant additional to those found in the combination of s 9(4) and s 9(5) assuming that the Commission otherwise has jurisdiction. What the legislation permits directly to be done should not be permitted to be undone by indirect means.

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:

A possibility, chance or likelihood of harm, hazard or loss. A person is at risk when he or she is exposed to danger, peril or injury.

99 In "L" v Commission for Children and Young People [2001] NSWIRComm 134, Peterson J said of the test in s 9(4): This test raises a question the answer to which in a given case may not readily appear. Risk is a concept the parameters of which may vary from the perspective of the assessor, but more particularly will also vary according to the know facts. On one view of it, the exposure of children to adults, even in the usually supremely safe context of child and parent, will always contain the possibility of a risk to the safety of a child. However, in the absence of some indication of actual risk, for example from a parent, the position will be that the child is to be regarded as not at risk. Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm. The existence of that potential will require some foundation in fact. The absence of that recognisable potential, it being that absence which the Act by its negative expression of the test in s 9(4) requires before an order can be made will depend on the tribunal finding some factual basis for the view that there exists no risk. What will amount to a sufficient basis for such a view must, I think, remain an issue for each case, given the wide-ranging variations in circumstances which may present .

100 I am not able to accept the submission for the respondent Commission that, so long as there is any risk however minimal, an applicant may re-offend and therefore pose a risk to the safety of children, then an order and declaration under s 9(4) cannot be made. Both Dr Westmore and Dr Allnutt were clear in their evidence that, once a person has committed a sexual offence there is always some risk that the person will re-offend, just as there is a risk that the average person without prior convictions for a serious sexual offence may offend. The various studies about which they gave evidence confirm that there are classes of sexual offenders with a high risk of re-offending and there are others with a low risk of re-offending - numerous factors have a role to play in the clinical assessments made or in the application of objective criteria gleaned from numerous case studies.

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).

102 In the Legislative Council, the Attorney General's reply on the Second Reading of the Bill included the following: Much effort has been put into the Child Protection (Prohibited Employment) Bill (No 3) and the Commission for Children and Young People Bill (No 2) to achieve a balance between protecting employees and protecting children from abuse. It is important that we protect reasonable civil liberties.

103 In my view it is relevant that in the Second Reading Speech in the Legislative Assembly, the Minister, in the course of discussing provisions for employment screening, spoke of "an unacceptable risk". The Prohibited Employment Act provisions were described as an integral part of the employment screening system. The Prohibited Employment Act was also said to implement Recommendation 139 of the Wood Royal Commission, a recommendation which referred to the concept of an "unacceptable risk certificate". In the Legislative Council, the Attorney-General stated that the Acts were designed to achieve a balance between protecting employees and protecting children from abuse, emphasising that it was important to protect "reasonable civil liberties". Section 34 of the Commission for Children and Young People Act states that employment screening is a procedure which includes an assessment of the risk to children arising from anything disclosed by such a check having regard to all the circumstances of the case.

104 All of these matters persuade me that the "risk" referred to in s 9(4) is not a mere theoretical or possible risk arising from the fact of a previous conviction, but is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights. The word "risk", as noted earlier, has a number of possible meanings - resort to extrinsic material is warranted to establish the meaning of the word in the context of this cognate legislation.

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.

106 The concept of "child-related" employment poses some difficulties because, as earlier indicated, the Act defines such employment to mean "… any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised" (emphasis added). On one view of the evidence in the present case, Mr "R" is not employed in an educational institution as a teacher where that employment "primarily involves direct contact with children" meaning a person who is under 18 years of age. The evidence is consistent that the vast majority of persons that Mr "R" would teach are probably over the age of 17 and many of them would be regarded as mature age students. In two cases, Peterson J has taken the view that the concept of the employment "primarily" involving direct contact with children cannot have been intended to mean that the employment was substantially so in the sense of the quantity of such contact, but rather that a primary feature of the work itself may involve direct contact of the kind described in the definition (see HREA v Commission for Children and Young People [2001] NSWIRComm 93; and "L" v The Commission for Children and Young People [2001] NSWIRComm 134).

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.

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".

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.

110 On one view the definition of "child-related employment" in the Commission for Children and Young People Act is wider than the same definition that appears in the Prohibited Employment Act. To give effect to the Prohibited Employment Act, the definition would be expected to be the same for the same concept used in cognate legislation. This is especially so when the Minister's Second Reading speech stated that the Prohibited Employment Act formed an integral part of the employment screening system. Section 37 creates further confusion by making a special provision for mandatory screening for persons proposed to be employed in "primarily child-related employment" and then gives a specific definition to that term. That specific definition, however, then picks up child-related employment to which the Prohibited Employment Act applies.

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).

113 In the Minister's Second Reading Speech in the Legislative Assembly, it was stated that the Prohibited Employment Act was introduced to give effect to, in particular, Recommendation 139 of the Royal Commission into the New South Wales Police Service, Volume V: The Paedophile Enquiry. That Report delivered in August 1997 contained the following Recommendation: 139. Consideration be given to the creation of the summary offence where a person convicted of child sexual abuse, or the subject of a current unacceptable risk certificate, seeks or obtains work, or offers or provides services, which in any such case involves that person having children in his care or under his supervision. That Recommendation, which does not limit its operation to those "primarily" involved in direct contact with children, together with the definition of child-related employment in the Commission for Children and Young People Act, and taken with the introduction of cognate legislation and the Minister's Second Reading Speech, persuades me that the definition of "child-related employment" in the Prohibited Employment Act should not be construed differently from that same term appearing in the screening provisions of the Commission for Children and Young People Act. Besides consistency of application in related provisions, such a construction appears to give effect to the legislative scheme introduced into Parliament: indeed , as highlighted earlier , the Minister noted that the Prohibited Employment Act provisions formed an "integral part of the employment screening system". It is worthy of mention that other Recommendations of the Royal Commission use unrestricted language in proposing that any employment which involves the care or supervision of children should be subject to an "unacceptable risk" certificate (eg Recommendation 59).

114 In relation to the respondent Commission's submission that the applicant must satisfy the Commission that he is not a risk to the safety of children to the Briginshaw standard, although on its face this does not appear to be a controversial statement, it does bear some consideration. For instance, the Briginshaw standard has frequently been applied in industrial tribunals as a protection against serious allegations: where, in the course of his employment an employee is dismissed for misconduct, especially involving allegations of theft, fraud or other criminal actions, the tribunals have acted on the basis that the employer must make out that ground on the Briginshaw standard (see, e.g Pastrycooks Union v Gartrell White (No 3) (1990) 35 IR 70; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454).

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).

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).

117 Based on a proper reading of Briginshaw, in light of what was later said in Neat Holdings, the provisions of s 140 of the Evidence Act should not be elevated by the use of language that suggests that, where there is a serious issue or serious allegation in a civil case, the standard of proof is almost indistinguishable from the criminal standard. The thread of just such a suggestion ran through the respondent Commission's submissions in the present matter. In cases under the Prohibited Employment Act, the starting point is that there has been committed a serious sexual offence and the Statute operates to prohibit such a person from engaging or remaining in child-related employment. To obtain an order under s 9 (1), an applicant does not have to prove that he or she was not guilty of the offence nor does an applicant have to prove that he or she will never offend again: these are not the tests. It is accepted that permitting a person, who has previously been found guilty of a serious sexual offence, to engage in child-related employment is a serious step and one which is taken in a legislative context which is designed to protect and enhance the safety of children. Nevertheless, a tribunal, in weighing the various factors in each case in the course of considering such an application should be prepared to make an order if it is able to comfortably conclude that, on all of the relevant material, the applicant does not pose a danger to the safety of children. The terms of s 140 of the Evidence Act clearly sets out the nature of the considerations without the hyperbole which frequently attends the citing of Briginshaw.

THE SUBMISSIONS ON MERIT 118 For the applicant, attention was drawn to the fact that five witnesses were called on his behalf who were able to testify not only to the general character of the applicant, but in both a professional and everyday capacity; they had observed him with children and young people in circumstances where no doubt was raised in their minds that he presented any sort of danger to the safety of children. While some of these witnesses were friends, others were work colleagues who had come to admire the applicant's qualities and were prepared to speak for him in his application to the Commission. They were all cross-examined with some vigour and closely tested as to the basis upon which their views were formed, but all of them stood by the opinions they had expressed.

119 In particular, the applicant relied upon the evidence of Dr Westmore who had formed the opinion that the risk of the applicant acting inappropriately towards children in the future was low. Further, Dr Westmore considered that the action which gave rise to the applicant's conviction was an aberration. Although approached from another perspective, Dr Allnutt's evidence confirmed the view expressed by Dr Westmore that the applicant presented a low risk to the safety of children.

120 The respondent Commission had concentrated on the fact that the applicant had originally denied the offence both to the police and to others before pleading guilty in the Local Court, but had also minimised the extent of the conduct even with the psychiatrists who had been retained to prepare reports on his conduct and present state of risk for the purposes of the present proceedings. Despite this concentration by the respondent Commission, Dr Westmore did not fundamentally alter his view that the chance of the applicant re-offending was low, while Dr Allnutt always remained of the view that the applicant was a low risk of re-offending. Further, Dr Allnutt, based on his statistical approach, did not regard denial and minimisation in sexual offenders as correlating with recidivism.

121 Mr Warwicker, a Project Officer employed by the respondent Commission, gave evidence of extensive inquiries made in respect of the applicant's character and antecedents. He testified to the enquiries he had made to the Department of Education and Training, including the Department's Child Protection Investigation Unit, the Department of Community Services, the New South Wales Police Service and, although information was obtained from a number of those bodies, the only record of relevance to these proceedings was the 1993 conviction in the Local Court.

122 In relation to one of the articles tendered by the respondent Commission, it was pointed out that two important elements which are often associated with recidivism was an offender of a young age, and single: but this did not describe the applicant before this Commission. Nor was there present what had been described as criminal lifestyle variables or other anti-social personality disorders. His offence did not involve a stranger, another indicator of recidivism. The absence of these elements, it was submitted, would give the Commission considerable comfort in forming the view that the provisions of s 9(1) were met and the discretion should be exercised in the applicant's favour.

123 It was accepted on behalf of the applicant that the offence to which he pleaded guilty was a serious offence - it carried a maximum penalty of seven years' imprisonment. The nature of the offence, however, was such that it covered a range of matters from the less serious to the most serious. It was submitted that the matters which gave rise to the applicant's conviction are appropriately categorised as being towards the lower end of those matters which constitute the offence, with the applicant being placed on a good behaviour bond rather than being imprisoned for any period. The offence may also be viewed as towards the lower end of the scale of seriousness of that offence because of the following matters: (i) the fact that the offence was constituted by touching rather than some invasive contact; (ii) the absence of overt force; (iii) the penalty imposed by the court, being a good behaviour bond. It was also clear that, whilst the applicant was dealt with by the Local Court in respect one offence only, in sentencing the court had to have regard to the fact that whilst it was dealing with one offence there were other offences. The court had before it at the time of sentencing the statement of the victim dated 8 December 1992 which indicated a number of incidents and also had the Police Statement of Facts, which indicated that there were a number of occasions involved. 124 In relation to the factors referred to in s 9(5) of the Prohibited Employment Act, at the time of the offence the applicant was 41 or 42 while the victim was 12 or 13 years of age; the difference between their ages was then approximately 29 years. In relation to the applicant's total criminal record, this was the only offence. There had been no offence since 1992.

125 In relation to other matters that the Commission may consider to be relevant, it was submitted that the following matters should be taken into account: (i) following the applicant's conviction he was demoted from Head Teacher in September 1994 and transferred as a teacher to another college in January 1995; (ii) from the end of January 1995 until 19 September 1997 (approximately two and three-quarter years) the applicant taught without coming to adverse notice; (iii) the applicant was subsequently removed and transferred to alternative duties on a temporary basis; (iv) in August 1997, the Manager, Human Resources from the South-Western Sydney Institute of TAFE, supported by the then Institute Director, recommended that the applicant be re-instated to his position of teacher, Social Science/Communications; (v) in August 1998, the then Institute Director likewise recommended that the applicant be reinstated to his position of teacher, Social/Science Communications; (v) having regard to the evidence of Mr Warwicker as to the enquiries made in respect of the applicant which show that there are no adverse matters found following extensive enquiries, it is likely that Dr Westmore is correct in forming the view that the applicant's action which led to this conviction was an aberration.

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.

127 It was submitted that the credibility of the applicant was very important if not vital to the proceedings. The applicant was subject to review by two psychiatrists but the respondent Commission accepted that psychiatry was not an exact science and that they largely rely on what they are told and the self reporting of the applicant. In that context, the credibility of the applicant was vital because he was really the only one who knew if he was a risk - psychiatrists could only offer an opinion. 128 There were a number of credibility problems demonstrated by the applicant's evidence and by reference to documents tendered in the proceedings. Firstly, in his application to the Commission the applicant stated there was only one occasion that this offending behaviour took place. He repeated that on oath in proceedings last year when applying for a stay order. He told Dr Westmore it had only happened once, and others had been told that it only happened once but, on further questioning, admitted that it had occurred on one other occasion. The victim's evidence, by way of the statement made to the police and now supported by her affidavit in these proceedings was unchallenged. She stated that the offending behaviour happened on numerous occasions. In fact, it happened on most occasions that the applicant was babysitting her.

129 The significance of this was said to be that the Commission would have difficulty in accepting the applicant's assurance as to his character as to how many times the offence occurred, and it also affected the weight to be given to the psychiatric evidence which relied on what was told to the psychiatrists by the applicant. Counsel for the respondent Commission accepted that he was not able to point to any scientific evidence or material that supported the proposition that minimising the offence or lying about it, in itself, raised a risk of recidivism. Here the minimisation and lying as to the number of occasions of the offence went to the credibility of the applicant's testimony, the testimonies of the psychiatrists and the applicant's character witnesses.

130 In this case, the applicant bore the onus of establishing that he was not a risk in circumstances where the legislation presumed him to be a risk: the applicant had to satisfy the Commission "to a high standard" that he is not such risk. The only basis on which the Commission could find that he was not a risk is on his testimony, on what the doctors say about him, and what the character witnesses say about him. All this evidence relies on credibility.

131 The character witnesses were all people in friendly relationships with the applicant and were people not informed before they arrived at Court as to the full nature of his offending behaviour and it was clear with almost all of them that they were surprised by the nature of the offence and, given time, they may have altered their view of the applicant: the information was dumped on them in the witness box and they were placed in the invidious position in front of the applicant of either supporting his good character or not supporting it. Even though it was accepted that this evidence was given on oath, the weight to be given to it had to be "minimal" because of the nature of the offence. The lack of weight to be accorded to such character evidence was demonstrated by the fact that the mother of the victim herself gave the applicant a reference in circumstances where she was not informed that it would be used in the Local Court in relation to the offence against her daughter.

132 The applicant's whole case was based on the notion that this was an impulsive action, was out of character for the applicant, was against everything he stood for and as soon as he realised what he was doing he stood back and said that he was not going to do this again. However, a different picture emerged on the evidence: he returned to the scene of the crime and committed the offence again and he cannot rule out that there were more occasions than that. It was not an impulsive action and it was something driven by a sexual desire for a child. His lack of reliability and credibility means that, when he tells the psychiatrist that he does not have any desire or fantasies in relation to young people or children, that evidence is questionable.

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.

DELIBERATION 135 The major issue raised by the respondent Commission, as described in the foregoing paragraphs, is the credibility of the applicant and the number of occasions where he lied or misrepresented the number of occasions on which he indecently assaulted the young victim. On the evidence before me, I am prepared to accept that these assaults occurred on a number of occasions and more than likely on more than two or three occasions. A little over six months after the last occasion, the victim could not be precise as to the number of occasions and told the police so in her statement; she did however make it clear that there were numerous occasions. The victim was not cross-examined on this issue, some ten years after the event, not because the applicant declined the opportunity to do so but largely because I had formed the view that it was not appropriate to require the victim and her mother to relive these events after such a long intervening period. There was evidence before the Commission that the Local Court was aware that there were allegations of a number of assaults and that appeared on the Facts Sheet. The victim's mother was aware of three occasions when the young girl had complained to her mother about the applicant touching her breasts. It therefore appears to be a case when there were more than two but, overall, an indeterminate number of occasions on which the applicant offended in this way. The relative importance of the total number of occasions of the offence and the existence of other evidence on this matter supported the view that requiring the victim and her mother to give oral evidence in relation this matter was not warranted.

136 The issue then arises as to what the Commission is to make of the fact that the applicant has, for a considerable time, been reluctant to face and be truthful about the number of occasions on which he touched the young child's breasts. During argument, I suggested to counsel for the respondent Commission that, in the way the issue was being pursued, the test in s 9(4) of satisfying the Commission that the applicant did not pose a risk to the safety of young children would be replaced by a test as to whether or not the applicant was a credible witness on an issue related to the offence which brought him before the Commission.

137 Kavanagh J faced a similar issue in "G" v J & H [2001] NSWIRComm 69. In that case, the respondent submitted that the applicant was not a man of truth but her Honour noted that the question before the Commission was that, even if on the evidence the applicant was found not to be a man of truth, did that finding make him a risk to the safety of children? Her Honour concluded that she could not accept, even if she was unable to find the applicant a witness of truth as to some matters of fact, that such a finding necessarily translated to a finding that he posed a risk to the safety of children (see par 59 and par 60). In this case, I am not able to form the view that the applicant's dissembling about the number of occasions on which this action took place impinges in any relevant way upon the consideration of whether or not the applicant poses a risk to the safety of children. Dr Allnutt accepted, and it appeared to flow from the Hanson and Bussiere article so heavily relied on by the respondent Commission, that minimisation and denial in relation to an offence has never been regarded as a reliable indicator of recidivism. Dr Allnutt spoke of the natural tendency of offenders to minimise their offence either because of their shame or because of a reluctance to publicly expose the extent of their abhorrent conduct. In other proceedings under the Prohibited Employment Act, I have received expert evidence to a similar effect.

138 It also seems to me important that a distinction be made between denial of the offence and minimisation of the extent of the conduct which constituted the offence. In the present case, although the applicant initially denied the girl's allegations firstly to her mother, secondly to the police and thirdly to his family, very shortly after being first exposed, he did admit his guilt. The mother's statement to the police recorded that in February 1992, when informed for the first time of his conduct by her daughter, she raised the matter with the applicant who at first vehemently denied it, then changed the subject and later said "yes", apparently accepting his guilt. Again, in June, after the last occasion of touching, the applicant wrote a letter to the victim's mother in terms which made it clear that he accepted his guilt. In December 1992, after being charged by the police, the applicant spoke with the victim's mother and again admitted his conduct to her although he said he was unlikely to be able to tell anybody else. To his credit, the applicant finally came to the position where he could no longer continue to live in denial of his conduct and he informed his wife, his local priest and his father. This acceptance of guilt is of significance because of the active and senior role he was playing in his church and because of the respect and high regard in which he held his father, to the point where he appears to have spent much of his life concerned with whether or not he could live up to his father's standards and expectations. He also had to confront his wife with the fact of his admission of conduct which he knew would be painful and hurtful for her. The applicant was then able to change his plea in the Local Court and was given a three year good behaviour bond which apparently passed without incident.

139 These were not the only occasions on which the applicant had to confess his guilt. Before the Local Court there were a number of character witnesses who made it apparent from their written references that they were aware, in general terms, of the behaviour which had brought the applicant before the court. Similarly, in evidence before this Commission the five witnesses who gave evidence in the applicant's case had all been told of the offence and the fact that it involved a child under the age of consent. The added importance of these occasions where the applicant has had to confront his guilt is that it, at least in part, answers the respondent Commission's submission that the applicant has not adequately acknowledged his conduct.

140 In G v J & H, the applicant stated that the child involved was 12 to 15 years of age when in fact the victim was eight years old. Further, the applicant stated that he did not remember the circumstances of the offence. Kavanagh J rejected both these statements, yet made an order in favour of the applicant. There are other examples of denial and minimisation of the offence which have not led to a refusal of an order (see also AG v Commission for Children and Young People [2001] NSWADT 163, 26 September, 2001). In one such case the expert evidence was that some minimisation of behaviour must be assumed. However, denial is so ubiquitous in this population (sex offenders) that it had little predictive value in regard to recidivism.

141 Both Dr Westmore and Dr Allnutt found that the applicant was uncomfortable in retelling the details of his offence and spoke of his shame at being involved in such conduct. Both are experienced clinicians and both accepted the applicant as being genuine in his expressions of contrition. Dr Westmore formed the view that Mr "R" was a man with a number of personality strengths and attributes. There was no evidence of any personality disorder. This episode occurred late in the life of Mr "R" (considered an encouraging sign) and indicated that the behaviour was "unanticipated" and "aberrant" - it was not something "which is an integral part of this man." I accept these opinions expressed by Dr Westmore.

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.

144 It is of interest that Dr Westmore and Dr Allnutt approached their assessment of the applicant from different perspectives. Dr Westmore emphasised the clinician's skill as aided by studies which established certain objective factors as being indicators of recidivism. Dr Allnutt emphasised the objective factors shown to exist in clinical researches and studies as modified by clinical assessment, especially as the clinician better gets to know the subject.

145 Dr Allnutt in his report noted that the applicant said that he was convicted of one offence but admitted to the behaviour occurring on one other occasion. From other material in his hands, Dr Allnutt, as with Dr Westmore, was aware that this was in conflict with the victim's statement to the police. Dr Allnutt therefore considered the prospect of the presence of paraphilia but nevertheless was able to conclude that the applicant represented a low risk. In my view, the psychiatric evidence gives considerable support to the applicant's case. Neither psychiatrist was prepared to say that the applicant would not re-offend but that is not the test required to be met under s 9(4) of the Prohibited Employment Act: the focus remains on whether or not an applicant will pose a risk to the safety of children. Satisfaction of the statutory test will depend upon a consideration of all the relevant circumstances of each particular case. I accept that various factors considered by Dr Westmore and Dr Allnutt in reaching their assessments are of relevance to my task under s 9(1) and 9(4) of the Act. Those expert assessments, I am satisfied, give support to the applicant.

146 There were other submissions for the respondent Commission with which I am unable to agree. It does not appear from the application filed that Mr "R" asserted that there was only one occasion, although in an affidavit Mr "R" refers to pleading guilty to one offence - an accurate statement. Nor is it accurate to describe the character witnesses as having the details of the offence "dumped" on them while they were in the witness box and exhibiting signs of embarrassment when informed of the repeated nature of the assault. Indeed, some witnesses demonstrated a more detailed knowledge of the offence and some had been informed some time earlier that it involved an under age girl. I am unable to conclude that these witnesses would reconsider their opinion if given more time. Further, it was not accurate to state that Mr "R" had not completed counselling treatment whilst on probation: his uncontradicted evidence was that the Probation and Parole Service did not require continuation of this counselling.

147 I also regard as significant the range of people who have given character evidence for the applicant. While it may be true, as submitted by counsel for the respondent Commission, that these people represent views from persons who are friendly with the applicant, they also represent views from people who have seen the applicant in different contexts. Some are teachers who have worked with him or who have supervised him and would be aware of any inappropriate classroom behaviour exhibited by the applicant over a significant period of time. Importantly, others (such as Ms Knott) have been able to observe the applicant in a social and family setting and have expressed their confidence in allowing their children (including young girls) to be in the applicant's company socially, while he drives them to school and also to stay over at his house. These occasions have given the applicant opportunity again to display the behaviour which brought him before the Local Court in 1993 but, from extensive investigations carried out by the respondent Commission, there is no suggestion of any continuing behaviour of this type or any other sexual behaviour which would raise a question about the suitability of the applicant to perform child-related employment duties. While I accept that it is often correct that there is a lack of reporting of these offences or that they often remain secret for many years, it is also often the fact that when an offender is exposed a number of other victims feel encouraged to come forth and disclose conduct that they had endured.

148 For the applicant, it was emphasised that the extensive enquiries made by the respondent Commission, including access to its intelligence-gathering network, had failed to uncover any other conduct which might be relevant to the Commission's consideration. I accept the significance of that submission.

149 In relation to the matters set out in s 9(5) of the Prohibited Employment Act, the applicant accepted that the 1992 offence was serious and carried a maximum penalty of imprisonment for seven years. The applicant also accepted that the age difference between him and the victim was 29 years with the girl being only 12 or 13 at the time of the offence. In my view this goes to the seriousness of the offence. It is also relevant that, at the time of the offence, the applicant was not only a mature man but was in a position of authority in relation to the victim and in many respects stood in the position of a father figure as well as being her mother's boyfriend. The applicant's total criminal record discloses this one offence, a period of three years on a good behaviour bond which apparently passed without incident and an absence of any other conviction for a period of nearly ten years. In the case of "L", Peterson J noted as a relevant factor that time had run for approximately 12 years without another offence. In this case, time has run for ten years without another offence and the applicant, for nearly three years, continued in direct and unsupervised teaching involving "children" and, further, continued social contact with "children" without reported incident. In the light of these matters, the expert evidence to which I have referred earlier, the age of the applicant now, and the nature of his employment, I am comfortably satisfied that he does not pose a risk to the safety of children in his position as a TAFE teacher.

150 The applicant wishes to pursue his career as a TAFE teacher. His training and energies for the last 20 years or so have been directed to this area of professional employment. He does not suggest either in his application or in his affidavit or oral evidence that he wishes to pursue teaching in any other capacity, for example, in primary schools or in high schools. I am satisfied that in that context he would not pose a risk to the safety of children between 14 and 18 years of age who might come into unsupervised and direct contact with him, accepting that they would represent a vast minority of students under his care and supervision at TAFE.

151 I do not immediately see the utility in making an order in terms wider than is necessary to meet the circumstances of the applicant. As referred to in G v J & H , a general order permits the applicant to obtain and continue in any form of child-related employment. There are likely to be cases when such a broad proposition is less acceptable to a tribunal than a more confined order which may be more comfortably made. This approach also serves to give some recognition to the conjecture which may attend particular applications - it will, possibly, reduce the scope of factors which need to be the subject of evidence and consideration by a tribunal. As an approach it will also make full use of the ability to attach conditions to an order, pursuant to s 9(9). Should the applicant wish to undertake different employment, then I see no reason why a specific application directed to that employment or a general application could not be made. The parties will be given an opportunity to address these issues before the terms of the order are finalised.

152 The respondent Commission submitted, as earlier noted, that should the applicant establish that he does not pose a danger to the safety of children, the Commission may, nevertheless, in its discretion decline to make an order that the Prohibited Employment Act not apply to him in relation to the 1993 conviction. One reason suggested in support of such a course was that the evidence did not disclose that the applicant would be returned to teaching even if such an order was made. In this context, it was submitted that the applicant was removed from teaching duties not because of the operation of the Prohibited Employment Act (which had not yet come into operation) but apparently on the exercise of the employer's duty of care, as it perceived it, towards students who may come into contact with the applicant.

153 I accept the force of the applicant's submission that this step was taken, probably as a protective measure, prior to the Prohibited Employment Act coming into operation. It is not surprising that large employers such as TAFE, in advance of the legislation, but in the knowledge of the investigations of the Royal Commission and the discussions initiated by Government as to appropriate legislative responses, may have undertaken their initiatives to identify within their workforce persons who had been convicted of a serious sexual offence and to remove those employees from contact with any students who may be of a young age. The likelihood that this was the approach adopted by TAFE receives support from a document dated 22 April 1998 directed to the Managing Director, the New South Wale TAFE Commission from the Institute Director of the South Western Sydney Institute, a document annexed to the affidavit of Mr Warwicker. That document, which referred to a June 1997 request for a report regarding staff involved in sexual conduct with under age persons, commenced in the following manner: SUBJECT: Identification of Staff Suspected of sexual misconduct. BACKGROUND: In her memo of 20 June, 1997, the then Managing Director requested a report regarding staff suspected of sexual misconduct involving persons below the age of consent.

The following information was provided in relation to Category 3 of that memo, ie Cases where criminal charges or convictions were laid against a staff or former staff member involving sexual misconduct involving any person below the age of consent. The June 1997 request came just over a month before the release of the Royal Commision's Report on paedophiles.

154 Mr "R" was identified as falling within Category 3 but ultimately a recommendation was made by the Institute Director that it was considered that there was no reasonable concern that Mr "R" would cause a breach of the duty of care owed by TAFE, New South Wales to protect its students. Nevertheless, he was ultimately transferred to non-teaching duties.

155 There is no suggestion in any of the material before the Commission that the removal of the applicant in 1997 from direct teaching duties was part of continuing disciplinary action against him resulting from the 1993 conviction: disciplinary action appears to have been completed by 1994 with the loss of the position of Head Teacher and a transfer to another college in the position of teacher. There is no suggestion that a further penalty was possible or under consideration. It is difficult to exclude the possibility that further punishment, if proposed, would not only be unconscionable but also beyond the disciplinary powers conferred on the employer.

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.

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).

159 In an industrial context, the Federal Court has expressed the view that an application for a declaration of entitlement to be admitted as a member of a registered organisation, once established, carried with it an obligation on the court to make an order giving effect to the entitlement and the court was not entitled to decline to make such orders by having regard to the objects of the Act and like matters (see Owens and ors v Australian Building Construction Employees and Builders Labourers Federation (1976-1979) 46 FLR 16 at 25 - 26). Similarly, in McLeish v Faure (1979) 40 FLR 462 at 468, the court considered that recent amendments may mean the court has no discretion to refuse to make an order giving directions for the performance and observance of the rules of an organisation where the claimant otherwise makes out a case. These cases, of course, depended upon the construction of particular legislative provisions.

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.

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".

164 In the Law of Employment (Butterworths, 3rd Ed.) Professor Szakats has argued that the "right to work" as a political slogan and a sociological desideratum had been given ample lip service and had even been enshrined as one of the basic freedoms in the Universal Declaration of Human Rights but that in a pure legal sense, the expression had mainly been associated with anti-closed-shop arguments, the right to belong to, and protection against wrongful exclusion from, a trade union. Loss of membership in case of any form of compulsory unionism equated with the loss of the job. The learned author noted the courts both in New Zealand and in Britain had made references to "the right to work", but mainly in the sense of a natural human right, for, in his view, the common law had never recognised a legally enforceable right to work. It was, however, noted, that Lord Denning MR in Lee v Showman's Guild [1952] 2 QB 329, had declared that a man's right to work in his trade or profession is just as important as his property rights, and later in Nagle v Fielden [1966] 2 QB 633 restated that "the common law of England has for centuries recognised that a man has a right to work at his trade or profession without being unjustly excluded from it" (see pp 391-392, 3rd Ed).

165 Whether it be described as human right, or a common law right, the right to work, in a general sense, appears to be one of the civil rights considered by Parliament in enacting the Prohibited Employment Act and the associated legislative measures. Thus the legislation balances two important concepts which may come into conflict: the right to work and the requirement to protect children from sexual abuse by those in whose charge they are placed. Where it is clear, on the evidence in a particular case, that a person poses a real risk to the safety of children, then the right to work in a position or profession which creates that risk must yield to securing the safety of children. Where, however, an applicant establishes that he or she does not present a risk to the safety of children, then the important principle and human right of the right to work assumes significant proportions. In such a case, it is difficult to see why an order should not be made in favour of the applicant. There may be difficult cases which arise from time to time where the potential risk and the right to work is much more evenly balanced and where it may be appropriate to resort to certain safeguards by attaching conditions pursuant to s 9(9) of the Prohibited Employment Act. As Peterson J said in "L" v the Commission for Children and Young People, the absence of a recognisable potential for risk where there is a factual basis for the view that there exists no risks, will remain an issue for each case, given the wide ranging variations in circumstances which may present.

CONCLUSION 166 It is apparent from the views I have expressed and elaborated upon that I am comfortably satisfied that the applicant has made out a case for the granting of an order pursuant to the provisions of s 9(1) of the Prohibited Employment Act. In the course of expressing those views, I have also raised for consideration the utility of making what I have described as a general order when it is apparent that the applicant seeks only to pursue a limited class of employment. It may be that there are unforeseen difficulties in making a more confined order, that is, one subject to conditions, or issues of policy, which should be considered. I therefore propose to relist this matter for mention in approximately seven days in order to permit the parties to digest the terms of the judgment and to obtain instructions in relation to the orders which are appropriate to make on this application.

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