''SB'' and Commission for Children and Young People [2007] NSWIRComm 61

Industrial Relations Commission (NSW)|2007-07-01|Before: Sams DP, Abadee J

CITATION: ''SB'' and Commission for Children and Young People [2007] NSWIRComm 61

APPLICANT ''SB'' PARTIES: RESPONDENTS Commission for Children and Young People UnitingCare Ageing, Western Region Community Care Services

Child protection legislation - prohibited person - application for an exemption order - conviction and jailing for serious sex offences - disadvantaged background - alcohol and drug abuse - pseudonym of applicant - applicant now works predominantly in aged care in Broken Hill - support from employer - no further convictions in 17 years - limited use of alcohol - stable family relationship - views of two psychologists - low risk assessment - no paedophilic tendencies - whether applicant poses a risk to the safety of children - whether conditions to exemption should apply - options as to conditions. CATCHWORDS: Held; effect of amending legislation - applicant may come into contact with children - change to risk assessment if alcohol usage increases - vulnerability of environment - new provisions as to fresh evidence - balancing the seriousness of the offences - background to offences - significance of psychologists' assessments - risk never eliminated - applicant's contrition - no further or prior convictions - responsible employee - stable long term relationship - complete rehabilitation - risk to future employment - applicant not a present risk to the safety of children - orders made - no conditions to apply to exemption - Act not to apply in respect to offences - Commissioner of Police and employer to be advised of order.

Child Protection (Prohibited Employment) Act 1998 LEGISLATION CITED: Commission for Children and Young People Act 1998 Interpretation Act 1987

''A'' and the Commission for Children and Young People (No 2) (2000) 104 IR 119 ''D'' v Commission for Children and Young People [2001] NSWIRComm 312. ''ES'' v Commission for Children and Young People [2004] NSWADT 33 ''L'' v Commission for Children and Young People (2001) 108 IR 16 ''M'' v Commission for Children and Young People (No 2) [2004] NSWIRComm 127 ''M'' v Commission for Children and Young People (No 3) [2005] NSWIRComm 318 CASES CITED: ''R'' v Commission for Children and Young People [2002] NSWIRComm 101 ''RY'' v Commission for Children and Young People [2006] NSWADT 51 ''UD'' v Commission for Children and Young People [2006] NSWADT 194 Commission for Children and Young People v ''A'' (2003) 123 IR 395 Commission for Children and Young People v IK [2005] NSWSC 1136 Commission for Children and Young People v ''S'' (2003) 136 IR 366 Commission for Children and Young People v ''V'' (2002) 127 IR 129 HREA v Commission for Children and Young People [2001] NSWIRComm 93

HEARING DATES: 7 February 2007; 8 February 2007

APPLICANT Ms D Hawkins of counsel SOLICITOR: Mr H Perera Western Aboriginal Legal Services

LEGAL REPRESENTATIVES: RESPONDENT Mr I Bourke of counsel SOLICITOR: Mr B Dean I V Knight Crown Solicitors

Mr S Borrow, Solicitor Leana Street Consulting

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

"SB" and The New South Wales Commission for Children and Young People

Application under section 9 of the Child Protection (Prohibited Employment) Act 1998 DECISION [2007] NSWIRComm 61 BACKGROUND 1 The applicant in these proceedings, to be referred to by the pseudonym "SB" seeks an order under s 9 of the Child Protection (Prohibited Employment) Act 1998 ('the Act') that the said Act does not apply to him in respect of the following offences: · sexual intercourse with a person under the age of 10 years (2 counts); · maliciously inflict actual bodily harm with intent to have sexual intercourse; · sexual intercourse without consent (7 counts). 2 The applicant was convicted of the above offences and sentenced by Abadee J of the Supreme Court of New South Wales on 8 March, 1991. An appeal to the Court of Criminal Appeal as to the severity of the sentence was dismissed in October, 1991. The applicant was released from custody on parole on 12 December, 1996 after serving six years imprisonment. It is noted that the applicant was convicted and fined on 18 July, 2005 for offences under the said Act; namely, a prohibited person undertaking child related employment and making a false statement. While these offences are not relevant to the current proceedings before the Commission, it would seem apparent that these matters were the trigger for the present application under Pt 9 of the Act. I also note that apart from these offences, the applicant has had no other convictions since his release from prison in December, 1996. 3 These proceedings were commenced by an application filed by the applicant on 4 April, 2006. An amended application was filed on 4 December, 2006. The matter was originally listed in Broken Hill on 24 May, 2006. However, the Commission for Children and Young People requested further time to seek psychological and other reports and to make an assessment of the material. The matter was adjourned for further directions in July and October, 2006 by teleconference. 4 For convenience, the Commission for Children and Young People shall be referred to as the respondent. The applicant's current employer, UnitingCare Ageing, Western Region Community Care Services participated in all the preliminary proceedings and provided helpful background information. Ms Hiltje Miller, a director of UnitingCare gave evidence in the proceedings. At the hearing of the matter in Sydney on 7 February, 2007, Mr S Borrow, for the employer, sought and was granted leave to be excused from further proceedings. Before doing so, he put that the employer supported and adopted the submissions of the respondent. EVIDENCE 5 The applicant is 43 years old and at the time of the offences he was 27 years old. He said that the offences against his six year old step-daughter and wife were isolated incidents committed over a period of weeks. He had been intoxicated at the time and vengeful, and was experiencing an estrangement from his partner at the time. He believed the offences were as a result of his violent upbringing, drinking and drug taking. During his imprisonment he undertook drug and alcohol counselling and a program with Alcoholics Anonymous. During this time he had reflected on the terrible things he had done and the effect they had on his step-daughter. He was very sorry for what he had done. 6 The applicant now works mainly in Aboriginal aged care, but he does come into contact with children in the households of clients he assists. However, present restrictions (imposed in January, 2005) limit his work and opportunity for promotion. Before these restrictions, he had provided respite care for a family with a mentally retarded male child ("QQ") where he was unsupervised. The family had been very happy with his work. 7 The applicant had not re-offended in 17 years (save for the offences of not disclosing his previous convictions). He is proud of the fact that he has controlled his alcohol intake and doesn't drink to excess. He presently is in a 10 year loving relationship (his partner provided a letter of support) and he is improving his skills and education. He has passed a Certificate II in Aged Care and working on Certificate III. He is also a well respected member of the Aboriginal community and a member of the Broken Hill Aboriginal Working Party. 8 The applicant said he loved working for his Aboriginal elders. His employer for the last three and a half years regards him as a good worker and had promoted him to supervisor. The employer is happy for him to continue in his current position and he would be happy to comply with further consultations with psychiatrists. He felt very sorry for what he had done and wished an opportunity to continue his good work, having been completely rehabilitated. 9 In further evidence in chief, the applicant described his work in the Aboriginal aged care community. He assists in the clients' homes with showering, toileting, cleaning, appointments, shopping and taking the elderly to activities. When he visits an elder's home with children present, the elder is always there. The applicant was asked about his failure to declare his previous convictions. He said he had trouble filling out forms and believed that what he had signed was only to give authority for a police check. He had nothing to hide and just didn't understand the form. 10 The applicant described his current drinking habits. Once a month he has a few beers at a karaoke night with his brother. He said he was very conscious of the effects of alcohol and stays away from it because of the trouble it had previously got him into. His current plan was to give up smoking, but he has found that very difficult. However, he wants to get healthy again and resume his artwork which he had given up when his 15 year old son was killed four years ago. 11 The applicant outlined his previous drinking habit and drug use. His former wife smoked marijuana and he used to drink beer frequently. They had fought all the time, and when he drank he couldn't remember what he had done, or how he had got home. During his time in prison he had undergone counselling in respect to the sex offences. He was very aware of what he had done and was ashamed and disgusted. He would never do it again. He simply wanted an opportunity to move forward, work in the community and improve his education and skills. 12 In cross-examination, the applicant confirmed that he is presently employed as a supervisor / activities officer and since the restrictions were placed on him in January, 2005 he had not had any contact with children in his employment. He works with the elderly in an old Uniting Church where the employer's office is located. He agreed that this work could continue, even if an exemption was not granted by the Commission. However, before the restrictions were imposed, he had supervised other employees who visited the elderly in their homes. If an exemption was granted by the Commission, he would be able to resume visiting the homes of the elderly and supervising other workers. At the present time, two other employees carry out these functions. The applicant agreed that during the course of his normal duties it was possible that he might be called upon to shower a disabled child. 13 The applicant said that it was his intention to continue working for his present employer and to seek opportunities for promotion as his skills improve. He had no intention of seeking work as a foster carer, or in a hospital or youth refuge or being involved in scouting. He said he personally preferred to stay away from this type of work because his past record was known. 14 The applicant said that before he stopped painting (after the death of his son) he had been very successful in selling his artworks overseas, including to the Olympic Committee. He had been told he was very talented and he was hoping to resume his artwork and "make some decent money out of it". He was looking to go into business with his aunt within a couple of years. 15 The applicant was questioned about his step-daughter's statement in 1990 in which she had said that what he had done to her had occurred more than twice. (Objection was taken to this question, but the objection was overruled.) He said he could only recall two occasions because he was often so drunk, he couldn't remember what had happened the night before. In August, 1994 he had told a parole officer that he really didn't think he had hurt his step-daughter. However, he now accepted that what he had done was terrible and that he and his victim would have to live with the experience for the rest of their lives. He had paid for it with six years of his life in prison, during which time he had dramatically changed his attitude and behaviour and had now taken a different path in life. 16 The applicant was asked why he had said in his affidavit that the offences against his step-daughter and ex-wife had all occurred over a period of weeks, when in fact, the offences against his wife had occurred six months after those against his step-daughter. He had also said that it hadn't occurred to him at the time, that it was an offence to force sex on his partner. However, he now accepted that what he had done was very wrong. 17 The applicant maintained that alcohol was a significant factor in the offences he had committed - despite Abadee J finding otherwise in 1991. During his time in prison he had attended Alcoholics Anonymous meetings, but he agreed he had not done so since being released. He acknowledged that he was a different person when he was drunk, but he had now controlled his drinking. Nevertheless, he had told Dr Lennings that when he did drink, it was 10 to 12 standard drinks. However, he now knew when to say "no", despite the pressure to drink in the Aboriginal community. He agreed he had told Ms Duffy that when he was released from jail, he had abstained from alcohol and drugs. This wasn't completely true given his present social drinking. However, he said he doesn't drink at home now and doesn't allow friends and family to bring alcohol to the house. The applicant agreed that he could be a risk again if his drinking got out of control. 18 In re-examination, the applicant said that he hadn't drunk alcohol at all for six years while he was in jail and for between three to six months after his release. He now has a few drinks once a month and wants to stop smoking. 19 The applicant described the restrictions on his work and limited job opportunities if he was not granted an exemption by the Commission.

20 Ms Anita Duffy, a consultant psychologist gave evidence that she had interviewed the applicant on 16 January, 2006 having reviewed much of the documentary material. She characterised the applicant's offences as being borne out of drunken anger and revenge at a time when his personal relationship was very bad and turbulent. When asked how she would characterise the applicant's progress she deposed as follows: I think he's really made a terrific job of rehabilitating himself. I am very impressed because he has managed to get out of the cycle of drug and alcohol abuse. He's got a terrific job. He's an artist of some repute. He has a responsible position and he has a good relationship now with his current partner and, you know, he's quite well-known in his community and well-regarded. So, you know, it's a success story as far as I can see. It's really quite admirable. 21 Ms Duffy agreed that her notes recorded the applicant as having given up alcohol altogether. However, at another point in her report she records him as having controlled his drinking substantially to only involve the odd social outing. 22 Ms Duffy referred to her actuarial assessment of whether the applicant was likely to re-offend. This assessment involved looking at his history and other lifestyle factors such as alcohol or drug abuse. She had concluded that he was a low risk. Ms Duffy was also aware of the incident involving "QQ" while in the applicant's care and understood that there had been no problems. 23 Ms Duffy said the present restrictions on the applicant, notwithstanding that he worked primarily with the elderly, would be a great barrier to any kind of advancement in his employment. He would be disadvantaged if he couldn't do a full range of his duties. 24 Ms Duffy did not consider that the applicant needed any counselling, supervising or any conditions on an exemption. Commenting on his Aboriginal background, Ms Duffy said: As I said before, I think it's admirable because he has educated himself, he's got out of unskilled work, he has, you know, undergone courses at TAFE, whilst he was in custody he did various certificate courses. He's also found employment in an area which is not known for Aboriginal employment in the aged care and the sort of social welfare area and I think he's a sterling example, I guess, of a person who has rehabilitated himself and not sunk back into a pattern that unfortunately a lot of indigenous people come out of gaol and go back to drinking and offending behaviour and he has been quite a terrific example of someone who has succeeded in breaking cycle. 25 In cross-examination, Ms Duffy was asked to comment further on the applicant's consumption of alcohol. She didn't regard his present controlled drinking as a problem and it certainly wasn't of the type he engaged in at the time of the offences. 26 She was referred to Dr Lennings' report in which the applicant had said that when he drinks it might be 10 to 12 standard drinks. Ms Duffy explained that while this might appear to be a fair amount, what needs to be taken account of is how often this occurs and what happens when he reaches that level. At the moment, it doesn't seem to have led to any problems in his life. In addition, he has a different circle of people he associates with now. It is more in line with a Friday drink after work, rather than a furious drinking habit. Even knowing now the level of intake, Ms Duffy said she would not change her opinion of the applicant's risk. While it might require some elevation of risk, it was not a substantial one. 27 Ms Duffy agreed that risk is also dependent on the environment in which the person works. However, she said that the applicant's offences were committed in a domestic situation and wasn't the behaviour typical of a paedophile. Ms Duffy agreed that there may be a need to put conditions on another job which is in a higher risk environment. However, she believed the risk wouldn't increase substantially, even if he was to work in a refuge or as a foster carer. This was because the offence was very specific, and occurred many years ago in the context of a bad, dysfunctional family. She agreed that alcohol consumption and a high risk environment might be a difficulty if he didn't separate his private life and work. She believed him responsible enough to deal with that difference. 28 Nevertheless, Ms Duffy agreed that the applicant's present job ensures the need to protect the interests of children and the applicant's interests. In re-examination, Ms Duffy explained: I can't see - I don't think there's any need for him to be watched all the time by another adult or anything like that. I think he's sort of proven his trustworthiness and his good work record and the good references I have seen from his employers all indicate that he's a good worker and trustworthy and reliable and doesn't need someone hanging around him all the time.

29 Dr Christopher John Lennings is a clinical psychologist from the University of Sydney. He was asked to provide a clinical assessment of the applicant. His report was provided on 21 July, 2006. In concluding that the applicant does not suffer from a personality disorder or mental illness, Dr Lennings added: "SB" does not present as a person who has a significant risk of recidivism. It seems to me that "SB" does not pose any substantial risk to the safety of children or young people either in the context of his work or otherwise. He does appear to have made a genuine and long lasting response to the offences that occurred and as far as I can tell on the basis of my assessment does not harbour any significant underlying factors that would suggest he has any ongoing risk. He is not sexually deviant and if anything it appears that his sexual drive is diminishing more rapidly than one would anticipate given his age. He appears to have a good sexual relationship and is able to meet his sexual needs in an appropriate way without utilising inappropriate fantasy or behaviour in order to deal with them. I do not think that "SB" requires any treatment as such. I think that he is a person who has a reasonable (sic) stable personality, does not suffer from either a mental illness or a personality disorder and therefore does not require treatment or counselling. Although on my assessment alcohol use does not appear associated with psychosocial harms, and hence is not a risk factor that needs a specific recommendation, it would be of benefit to "SB" to continue to monitor and modify his alcohol pattern so that he no longer binge-drinks. 30 Dr Lennings said that after listening to the applicant give evidence, he maintained his view that the applicant is a person of low risk. Dr Lennings said that although excessive alcohol use is a risk factor, the applicant's behaviour is not associated with psychosocial harms and does not appear to be a specific risk factor in his case. 31 Dr Lennings described risk assessments as comparing two components: the individual who may have a propensity to re-offend and the vulnerability of the situation the individual finds him or herself in. During the applicant's assessment, account was taken of the low vulnerability of the applicant's present employment. This might change in a different work environment and the overall risk assessment will change, even though the first component might not. A low risk person in a high risk environment might well be regarded as an unacceptable risk. 32 Dr Lennings explained how the risk assessment operates. No person with an offence can be assessed as being of no risk. The lowest assessment is low risk. After discounting for 10 years out of jail with no further offences, Dr Lennings attached a medium low risk to the applicant. Dr Lennings said that the applicant's current use of alcohol and control over his drinking wouldn't raise his risk level, but it would if he started to drink at work. Dr Lennings said that the applicant's risk level does not require his current blanket restrictions imposed in January, 2005. 33 In cross-examination, Dr Lennings explained the four main factors that are most likely to lead to recidivistic behaviour; psychopathy, drug and alcohol usage, deviant behaviour and antisocial peers. He then described the assessment process which he undertook to reach a low level risk finding for the applicant. The applicant's current level of alcohol use had been managed and was not a current concern. Dr Lennings concluded that the applicant didn't appear to have psychopathic tendencies or deviant behaviour. There was no evidence of an unnatural interest in children. The offences appeared to be as a result more out of revenge and anger than out of a sexually perverted view of children. There was no behaviour which would suggest a sustained interest or a sustained act against a pre-pubescent child. Dr Lennings could not discern a pattern suggestive of paedophilic interest. 34 Dr Lennings deposed that notwithstanding the applicant might change employment to an area of higher vulnerability, that change shouldn't alter the estimate of risk, unless something dramatic changed in his personal circumstances. One would then need to consider the vulnerability of the situation the applicant was in. This becomes an issue of community standards as much as anything else. He said that even very low risk persons make mistakes and do re-offend. Therefore, in a highly vulnerable situation there is a need to reconsider what the meaning of low risk is. 35 Ms Hiltje Miller is the Director of Care of UnitingCare in Orange. She had provided a reference for the applicant in October 2005 in which she described his high level of responsibility and the respect he is held by other community services and the clients he cares for. The elders very much enjoyed the applicant. He has a gift for communication, particularly with difficult clients. She said there had been no complaint with the applicant's work in respect to disabled young person "QQ". 36 Ms Miller said that she would have no problems with the applicant working back in the community. She said that UnitingCare does occasionally care for indigenous children and this may involve personal care, such as showering, although it is not often. The applicant is a supervisor who currently works two days in the day centre and three days in the office. He does have some literacy problems. However, the applicant was more suited to looking after the elderly. She agreed that in visiting the elderly, many of them are in extended families where children might be present. 37 Ms Miller deposed that if the applicant was unsuccessful in securing an exemption order his present position would need to be reassessed, including the possibility of terminating his employment. There were presently no positions available in Broken Hill which do not involve direct contact with children.

SUBMISSIONS 38 Ms D Hawkins, of counsel for the applicant, relied on the evidence of Dr Lennings and Ms Duffy as demonstrating the applicant was a low risk to the safety of children. As to the prospect of re-offending, Ms Hawkins referred to Dr Lennings' opinion that the applicant's behaviour and present alcohol consumption were not of a concern. 39 Ms Hawkins drew a distinction with the conditions placed on persons who had offended in their current occupation and the unique circumstances of this case where the applicant had offended in a domestic situation which had got completely out of hand. She stressed that neither psychologist considered the applicant to have paedophilic tendencies. Ms Hawkins emphasised the isolated nature of the offences. Notwithstanding a violent and drunken upbringing, the applicant had not offended before or after the offences in 1990. The offences were as a result of anger and retribution and had happened 17 years ago. 40 In considering the applicant's present level of alcohol consumption, Ms Hawkins said that Ms Duffy had expressed the view that the applicant had controlled his drinking and he was responsible enough to handle it. It hadn't appeared to be a problem in his life. 41 Ms Hawkins submitted that the applicant seeks a blanket exemption without conditions. She said that when looking at the case law, where serious offenders may be working directly with children, the conditions are not as draconian as what has been proposed by the respondent in this case.

42 Ms Hawkins said that while Dr Lennings agreed the risk was low, under the methodology used, no convicted person could ever be classified as posing no risk. Ms Duffy had praised the applicant's rehabilitation, particularly as he comes from a violent Aboriginal background, where so often there is a long history of criminal conduct and recidivism. The applicant was now a credit to himself, his family and his community. He had re-educated himself and was now a well known artist and respected member of his community. While heavy drinking continued to be a problem in the Aboriginal community, the applicant had successfully resisted being involved. In addition, the applicant has the support of his employer, and the support of his long term partner. He has shown remorse and contrition for his crimes. Ms Hawkins concluded that the applicant does not pose a risk to the safety of children. 43 Ms Hawkins added that there would simply be no circumstances where the applicant could turn up to work drunk or drink on the job. The emphasis by the respondent on his drinking habits was a fallacious argument. 44 Ms Hawkins put that the applicant was the very type of person the legislation was intended to assist. The applicant has "done his time" and he had come a long way from a very disadvantaged background. He has had to live with the stigma of his terrible crimes, and he is very sorry for what he had done and wants to get on with his life. 45 Mr I Bourke, of counsel for the respondent, submitted that the applicant must discharge the onus of establishing he is not a risk to the safety of children. The meaning of risk was discussed in Commission for Children and Young People v "V" (2002) 127 IR 129 and which also drew upon Haylen J's analysis in "R" v Commission for Children and Young People [2002] NSWIRComm 101. Mr Bourke said that even if an applicant proves that he is not a risk to children there is still a discretion to be exercised by the Commission as to whether an exemption should be granted. It was appropriate in this case to apply conditions, if the Commission was minded to grant the exemption.

46 Mr Bourke referred to the decision of the Full Bench of the Commission in Commission for Children and Young People v "S" (2003) 136 IR 366 which had considered the purpose of the legislation. It was relevant to note that the Act was not only aimed at people classified as paedophiles, but creates a presumption that any person convicted of a serious sex offence, either on a child or an adult is a risk to children. The acknowledgement of how serious the legislature regards such matters is demonstrated by the fact that the recent amendments meant that the applicant would not even have been permitted to apply for an exemption if he had sought it after January this year. 47 Mr Bourke submitted that the offences committed by the applicant were extremely serious, particularly where he was a person who was in a position of trust. The offences against his wife occurred six months later while the applicant was on bail for the offences against his step-daughter. Mr Bourke noted that the sentencing judge specifically rejected alcohol as being a factor in the crimes. At the time, the applicant was not a juvenile, but a mature aged man. There was a strong presumption of risk as this was not a matter in the least serious range of categories. It directly involved a serious offence against a child. 48 While Mr Bourke commended the applicant's rehabilitation, his success with his artwork, employment and relationships, he said that obtaining an exemption is not a prize for good citizenship. It is about risk to children. In considering the various factors in s 9(5) of the Act, the offences were committed 17 years ago, when the applicant was a mature aged man. While the evidence of the psychologists disclosed the applicant as low risk, it might still be an unacceptable risk given certain types of vulnerable situations. Mr Bourke added that Ms Duffy's opinions need to be tempered by the fact that her views were predicated on a belief the applicant was not drinking alcohol at all. 49 Mr Bourke concluded that the applicant had not discharged the onus of proving he was not a risk to children. However, if the Commission was minded to grant an order it should be on certain conditions. He referred to "D" v Commission for Children and Young People [2001] NSWIRComm 312. 50 Mr Bourke proposed two options. The first would allow the applicant to continue in his current employment and to attend to the care of elderly persons, even if there is no direct contact with children. The conditions would be that: a) this order shall apply only to the Applicant's employment as "Supervisor" with United (sic) Care Ageing (Western NSW); and b) the Applicant shall not, in the course of that employment, have direct contact with children under the age of 18 years unless in the presence of another adult. 51 However, a complication might arise by virtue of s 33G of the Act which would prohibit the applicant from making another application if he changes employment which involves direct contact with children. One answer would be to give a conditional order permitting the applicant to reapply if his circumstances change, or to grant leave to bring a further application. This was the approach adopted by the Administrative Decisions Tribunal in "UD" v Commission for Children and Young People [2006] NSWADT 194 and "ES" v Commission for Children and Young People [2004] NSWADT 33. However, there may be a query whether the Tribunal had the power to make such an order. However, section 33B(2) would seem to protect the applicant's position. 52 The second option would prohibit the applicant from being employed in certain identified and potentially high risk occupations. These had been drawn from the Act itself in s 3. ... subject to the condition that this order does not permit the Applicant to apply for, undertake or remain in the following types of child-related employment:- a) employment in pre-schools, kindergartens and child care centres (including residential child care centres); b) employment in schools or other education institutions (not being Universities); c) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987); d) employment in refuges used by children; e) employment as a babysitter or childminder that is arranged by a commercial agency; f) employment involving fostering or other child care (other than child care associated with his current employment as "Supervisor" by United (sic) Care Ageing Western NSW); g) employment at overnight camps for children. 53 In reply, Ms Hawkins said the decision cited by Mr Bourke in respect to conditions, applied to a TAFE teacher and were in entirely different circumstances to those applying in this case. The options proposed by Mr Bourke were problematic and may cause serious problems for the applicant if his employment situation changes. It was not clear if he would ever be able to reapply for an exemption, given the recent changes to the Act. A blanket exemption was therefore appropriate in this case. She said that it was not the intention of the legislation to have people keep coming back for exemptions. 54 Ms Hawkins said the approach of the respondent was draconian and no case could be cited as authority for what it proposed. She relied on a not dissimilar situation involving drinking, relationship breakdown and sexual needs. In that case, while conditions were sought, they were not granted: see "RY" v Commission for Children and Young People [2006] NSWADT 51. 55 Ms Hawkins submitted that while sex offences are very serious matters, it doesn't mean there is a stronger presumption of risk given the nature of the offence. What must be balanced against the offence is the various matters raised and accepted by the respondent as ones in the applicant's favour. Ms Hawkins referred to Haylen J's observations concerning the right to work. This should be a factor to be considered higher up the scale in this case.

CONSIDERATION 56 At the commencement of the proceedings, Mr Bourke appropriately alerted the Commission to recent legislative amendments to the State's child protection legislation. 57 On 2 January, 2007, the Child Protection (Prohibited Employment) Act 1998 was repealed and its provisions transferred to the Commission for Children and Young People Act 1998. One of the effects of the amendments is that had new s 33G of the Act been in force at the time this application was filed, it would have prevented the applicant from making any application at all for an order that the Act is not to apply to him. This is because of the serious nature of the applicant's offences. Section 33G is expressed as follows:

33G Persons not entitled to make review applications

(1) A prohibited person who has been convicted of any of the following offences, committed by the person as an adult, is not entitled to make an application under section 33H or 33I:

(b) an offence under section 66A, 66B, 66C, 66D or 73 of the Crimes Act 1900 or a similar offence under that Act or any other law involving sexual intercourse with a child (including a law other than a law of New South Wales), (c) an offence under section 91H (2) of the Crimes Act 1900, involving the production of child pornography, or a similar offence under a law other than a law of New South Wales, (d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs. (2) The Commission or a relevant tribunal may grant leave to a prohibited person to make a review application, despite a conviction for an offence referred to in subsection (1), if the Commission or tribunal is satisfied that: (a) the offence is an offence referred to in subsection (1) (b), or an offence of attempting, or of conspiracy or incitement to commit such an offence, and (b) the prohibited person was not more than 3 years older than the child against whom the offence was committed, and (c) the offence did not involve circumstances of aggravation within the meaning of section 66C of the Crimes Act 1900.

58 Mr Bourke submitted, correctly in my view, that the application can be processed under the repealed Act as the application was filed some time before the amendments came into effect. He relied on the provisions of the Interpretation Act 1987 in particular s 30(c) and (e) which would, unless a contrary intention is stated, preserve the applicant's pre-existing litigation initiated before the repeal of the Act: 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. 59 I concur with Mr Bourke's submission that there is no contrary intention to be found in the recent amendments which would prevent the present application from proceeding under the terms of the repealed Act. It is to those provisions to which I now turn. 60 Section 3 of the Act defines child related employment as: a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised: (i) employment involving the provision of child protection services, (ii) employment in pre-schools, kindergartens and child care centres (including residential child care centres), (iii) employment in schools or other educational institutions (not being universities), (iv) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987), (v) employment in refuges used by children, (vi) employment in wards of public or private hospitals in which children are patients, (vii) employment in clubs, associations or movements (including of a cultural, recreational or sporting nature) having a significant child membership or involvement,

(ix) employment in entertainment venues where the clientele is primarily children, (x) employment as a babysitter or childminder that is arranged by a commercial agency,

(xi) employment involving fostering or other child care,

(xii) employment involving regular provision of taxi services for the transport of children with a disability,

(xiii) employment involving the private tuition of children,

(xiv) employment involving the direct provision of child health services, (xv) employment involving the provision of counselling or other support services for children,

(xvi) employment on school buses, (xvii) employment at overnight camps for children, and

61 Although the applicant works almost exclusively within the elderly community of Broken Hill, there is no doubt that he may come into direct contact with children, such as the grandchildren or other younger relatives who may reside in the homes of the elderly clients the applicant visits in the course of his work. In addition, as described in his position description, there may be occasion, which require him to provide care and assistance for a disabled young person and one such instance had, in fact, occurred. 62 In these circumstances, there is no argument that the applicant's employment is "child related employment" for the purposes of the Act. In this respect I agree with what Peterson J said in HREA v Commission for Children and Young People [2001] NSWIRComm 93, that the work he performs is of a "kind that primarily involves direct contact with children where that contact is not directly supervised". Peterson J said at para 25: The notion of the work "primarily" involving direct contact immediately raises concepts of time but also would, 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 an 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. 63 Section 5 of the Act defines a prohibited person for the purposes of the Act and the type of offences which are described as serious sex offences. There is no question the applicant is a prohibited person as defined. Section 6 relates to certain offences relating to declarations by prohibited persons for which the applicant was convicted in July, 2005. As stated earlier, those convictions are not relevant to the present proceedings. In any event, I consider his failure to declare his convictions as an innocent mistake by someone who would have had nothing to hide. Sections 7 and 8 deal with the obligations on employers in respect to disclosure and prohibiting employment. 64 Section 8A permits the Commission for Children and Young People to make an order declaring the Act is not to apply to the person in respect of a specified offence. That section is not relevant here. 65 However, section 9 is directly relevant to this case. It permits a relevant tribunal, the Industrial Relations Commission or Administrative Decisions Tribunal (ADT) to make orders in respect to prohibited persons. This section is as follows: 9 IRC and ADT may make declarations concerning prohibited persons (1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence. (2) A relevant tribunal is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal.

(3) The Industrial Relations Commission may not make an order under this section unless: (a) the person is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from that employment under this Act, or (b) the person was such an employee who was dismissed from that employment under this Act. (4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. (5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following: (a) the seriousness of the offences with respect to which the person is a prohibited person, (a1) the period of time since those offences were committed, (b) the age of the person at the time those offences were committed, (c) the age of each victim of the offences at the time they were committed, (d) the difference in age between the prohibited person and each such victim, (d1) the prohibited person's present age, (e) the seriousness of the prohibited person's total criminal record,

(f) such other matters as the tribunal considers relevant.

(6) On an application under this section, the relevant tribunal may, by order, stay the operation of a prohibition under this Act pending the determination of the matter. (7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order. (8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 8A in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal. (9) Orders under this section may be made subject to conditions. (10) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order. (11) The following applies to proceedings before the Administrative Decisions Tribunal under this section:

(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings. 66 Both counsel referred the Commission to a number of first instance and appeal decisions of this Commission, the Supreme Court of New South Wales and the ADT concerning the intended purpose of the legislation, the interpretation of the various provisions of the Act and the application of those provisions to an individual applicant for exemption under the Act. I have had regard for all of the authorities cited and note in particular the following: 67 The general purpose of the Act was neatly summarised by a Full Bench of the then Commission in Court Session at para 71 of Commission for Children and Young People v "A" (2003) 123 IR 395: That construction of the Child Protection (Prohibited Employment) Act would appear, given the particular concerns to which the legislation is directed, to give effect to the obvious legislative intention. The legislature has seen fit to place the requisite onus upon persons who have been convicted of a serious sex offence, to demonstrate why they should no longer be considered a danger to children if they are, or seek to be, engaged in child-related work. The difficulties and expense which may be associated with making such an application are not to be minimised. It is, however, clear that a person who has not transgressed in the 15 years since the relevant recognizance period has expired, is entitled to have that circumstance taken into account in the consideration whether they any longer pose a threat or danger to children. 68 The general purpose of the legislation was further discussed by the Full Bench of the Commission in Commission for Children and Young People v "S". I refer in particular to para [36] of that decision: 36 In these circumstances, we consider correct the submissions made by the appellant to the effect that the Child Protection Act , upon its proper construction, was intended to cast a wide net but with the ready possibility that, upon an appropriate review, a person posing no present risk could receive the benefit of a declaration under s9.

I note also what Wright J said at para 31 of "A" and the Commission for Children and Young People (No 2) (2000) 104 IR 119: Such considerations serve to show the broad public interest the legislation is intended to serve. It is not a statute intended to impose an additional punishment on a person guilty of a criminal offence of a sexual nature. Rather it is intended to provide a means to identify such offenders to the relevant authorities and, where relevant, their employers, and to eliminate to the greatest extent possible the risks that such persons might pose to children particularly from any institutional contact or relationship they might have with them. These considerations serve to emphasise the importance of the public interest considerations embodied in the terms and purposes of the legislation and the stringency of the approach to be taken by the Commission prior to making an order whether final or interlocutory.

69 The concept of what constitutes a risk referred to in s 9(4) of the Act, has been discussed in a number of decisions. Haylen J in "R" v Commission for Children and Young People at [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. In Commission for Children and Young People v "V", Young CJ said at [41] to [43]: 41 It follows that when approaching the construction of s 9 one must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence.

42 (2) It almost follows, from what I have just said, that one does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". The approach of the plaintiff is to say that children must be read as children generally, and if there is a risk to a section of children which is constituted by a large number of children, then there is a risk to children generally. So that, if in the present case it be said that Mr V is a risk to female teenage children, then he is a risk to children generally.

43 I very much wonder whether that is a proper construction of the Act. If it is to be read so as to preserve a balancing exercise, I would have thought a more balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. If a person is only going to be employed amongst boy children, then the fact that he might be a risk to girl children may be quite irrelevant.

The above approach was adopted by Boland J in "M" v Commission for Children and Young People (No 2) [2004] NSWIRComm 127. 70 Another principle particularly opposite to this matter, was that discussed by Haylen J in the following passages from "R" v Commission for Children and Young People: 160... 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. 165... 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. 71 Another important consideration in this case arises because of the methodology used in assessing the risk profile of the applicant. The evidence of Dr Lennings disclosed that no person with a conviction to whom the Act applies, can ever be classified as posing no risk. The lowest characterisation of risk is that of low risk. It follows therefore that all of the exemption orders made under the Act, even without conditions, must have applied to persons who have, and will always be regarded as low risk. In a number of these cases where an applicant has been assessed as low risk, no conditions have been applied: see "L" v Commission for Children and Young People (2001) 108 IR 16; Commission for Children and Young People v "S" and "RY" v Commission for Children and Young People. 72 On the other hand, there is no doubt that the Commission is able, pursuant to section 9(9) of the Act, to make orders subject to conditions: see "D" v Commission for Children and Young People; "M" v Commission for Children and Young People (No 3) [2005] NSWIRComm 318 and "UD" v Commission for Children and Young People. Mr Bourke submitted that if the Commission was persuaded to grant an exemption under s 9 of the Act, it should do so with conditions under one of the two options he proposed. See earlier paras 50 and 52. 73 The Commission has carefully considered all of the evidence in the context of the legislative framework and the intention and purpose of the Act. Whether the Commission should grant a blanket exemption to the applicant has been a difficult decision when balancing the seriousness of the offences committed against the other factors to be taken account of. Plainly, the offences committed by the applicant are particularly heinous and would be at the high level of community outrage and revulsion. Another factor is that option 1 proposed by the respondent would not, on its face, seem to materially affect the applicant's present employment circumstances. Should the Commission take account of any likely change in the applicant's present employment? 74 In addition, a number of questions, albeit hypothetical ones, arise in the context of whether the applicant poses a risk to the safety of children. If it is accepted these offences were committed as a result of alcohol and drug abuse and as a means of revenge, can one be confident that a similar set of circumstances will not arise in the future? The applicant has not abandoned alcohol completely; although I am satisfied he has done so with drugs. Could his monthly social drinks lead to more frequent or heavier drinking episodes? Could another social / family or environmental change alter the applicant's behaviour? Dr Lennings cautioned that risk levels would increase if the applicant's drinking behaviour was to change for the worst. He had assessed the applicant based, inter alia, on his present work environment and drinking behaviour. A change in employment might increase the vulnerability and hence the risk. 75 The obvious difficulty of attempting to answer these questions, is that they are purely hypothetical. The exercise undertaken in all these matters can only be based on the assessments taken in the context of the known social / environmental circumstances prevailing at the time. It is perhaps unhelpful to engage in hypotheticals, notwithstanding the critical task the Commission must undertake to evaluate whether an applicant poses a future risk to the safety of children. A risk will always be unknown. There can be no absolute guarantee that an applicant will never re-offend. 76 However, one further observation might be made, given one of the recent changes to the child protection legislation. Section 33M is a new provision and is expressed as follows: (1) The Commission may apply to a relevant tribunal to revoke or vary an order made under this Subdivision by the Commission or the tribunal. (2) The relevant tribunal may: (a) revoke an order, if it is satisfied, on the basis of fresh evidence provided by the Commission, that the person the subject of the proposed order poses a risk to the safety of children, or (b) vary an order, if it is satisfied, on the basis of fresh evidence provided by the Commission, that the person is likely to pose such a risk if the order is not varied. (3) A relevant tribunal may consider fresh evidence provided by the Commission. (4) Orders under this section may be made subject to conditions. (5) The following applies to proceedings before the Administrative Decisions Tribunal under this section:

(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings. 77 Thus, it would be open for the respondent to apply to revoke or vary, including with conditions, an order arising from these proceedings, based on fresh evidence that the person poses a risk to the safety of children. Fresh evidence might include any material change in the applicant's personal or employment circumstances, including any deterioration in the applicant's drinking habits. 78 There is one further question which I have found troubling. Should I have regard for the fact that the applicant would not have been able to make an application for exemption at all if he had done so after the proclamation of the recent amendments to the Act? It must be presumed, I think, that in enacting the new legislation, the Parliament was reflecting the community expectation as to not permitting a person convicted of a crime of the kind the applicant committed, to seek an exemption under the Act.

79 Although, as Mr Bourke submitted, it may be open for order to be crafted to protect a future application under the repealed Act (see "ES" v Commission for Children and Young People and "UD" v Commission for Children and Young People) or that s 9(8) may protect his position in any event, in my opinion, such protections might well be problematic given the obvious intent of s 33G of the new Act. However, in view of the orders I propose to make, further consideration of this matter would seem unnecessary.

80 Balanced against the serious nature of the offences committed by the applicant, are the following matters I consider to be opposite to the determination of whether the applicant poses a risk to the safety of children.

81 The undisputed evidence of two eminent psychologists, Dr Lennings and Ms Duffy was that the applicant, in his present state and circumstances, is a low risk. Moreover Dr Lennings' assessment was that the present restrictions on the applicant were unnecessary given this assessment. 82 A number of the observations of Dr Lennings and Ms Duffy seem to me to be entirely consistent with earlier psychological assessments of the applicant made at the time of his sentencing in 1991 and when he was recommended for day release in May 1996. In early 1991, Dr Hugh Jolly summarised his opinion after three interviews with the applicant: 1. "SB" pleads guilty to offences against his wife and step-daughter. The evidence is that he is full of guilt and real contrition. There is no evidence of psychiatric illness which interferes in his responsibility for his actions. 2. A history is given of "SB's" marital problems, and his inability to cope with his wife's increasing substance use and resultant anergia. 3. "SB" drank increasing amounts of alcohol, to sedate his tensions, and a diagnosis of early alcoholism seems appropriate.

There is no evidence of other major psychiatric illness. 5. Some aspects of "SB's" background and personal history are introduced, to bring his case into perspective. 83 In May 1996, two Departmental psychologists, Dr D Calder and Dr A Young said: "SB" has been in custody for 5 years and is eligible for parole in December 1996. During this sentence "SB" reports that he has developed a sense of identification with his culture which he didn't have prior to the offences. He states that he didn't take life seriously before and that alcohol had always been a way of life for him. He states that he is now able to see that this pattern of violence and alcohol is neither normal nor inevitable. He states that he is now much less negative than before as a result of working on his problems during this sentence. He states he is now more confident and has higher self-esteem. The latter is largely due to his pride in his Aboriginal art and his ability to talk to his family and share his problems in more appropriate ways. Access to the C3 program would provide "SB" with an opportunity to commence the process of reintegrating into society. Based on the available information, it appears unlikely that "SB" is at risk of re-offending in a similar manner while on day or week-end leave providing he is adequately supervised and is able to comply with normal restrictions regarding drug and alcohol abuse. I would recommend that he have no contact with the victims. 84 Neither Dr Lennings nor Ms Duffy considered the applicant's offences to have been as a result of paedophilic tendencies. They did not consider him to be a person who, either was, or is a paedophile. Nor did they consider the applicant to be suffering from any personality disorder or mental illness. 85 The applicant has not re-offended in 17 years, save for the recent conviction of non disclosure of his past convictions. Moreover, there were no convictions prior to the offences in 1990. The period of time since the convictions and the applicant's criminal record are matters specifically required to be taken into account. See s 9(5)(a)1 and (e) of the Act.

86 The Commission accepts that the applicant is very sorry for what he has done, understands the gravity of the offences and sincerely regrets his conduct. His contrition is not some new found phenomenon. Dr Jolly identified the applicant's contrition in 1991. 87 The applicant has proven to be a responsible employee and supervisor. There has been no criticism of his work or his performance. His present employer, for whom he has worked since 1 July, 2004 said this: (he) has shown a high level of responsibility and is well respected by other Community Services and clients for the care he is delivering amongst the indigenous people. He has been both caring and encourages clients to maintain their independence. ... UnitingCare is would (sic) like to remain in their employment and develop and encourage "SB" with a stable career path. 88 The applicant has been in a long and seemingly happy family relationship for over 10 years. His de facto partner provided a supporting letter for him and was not challenged on its contents. She said: I am aware of "SB's" past and found him to be a very loving, caring, sincere, honest, reliable, well mannered and hard working person. He has shown me and anyone who has come in contact with him in his personal or working life to be a decent person. 89 The applicant has been an active and well respected member of his community and has become a world recognised Aboriginal artist. He is a member of the Broken Hill Aboriginal Working Party. A reference from Mr Richard Weston, Regional Director Maari Ma Health Aboriginal Corporation said: "SB" works with the Miraga Aged Care in Broken Hill; he is responsible for caring and supporting Aboriginal elderly people. "SB" has a great respect for elders and he is often an advocate for their needs. "SB" takes his role very seriously and has developed a professional approach to his role. "SB" is also a member of the Broken Hill Aboriginal Community Working Party - a forum for community decision making -; he regularly attends meetings and makes a strong contribution to the direction the Community wishes to take. I have no hesitation in recommending "SB" for his integrity and honesty and his ability to take responsibility. I have observed these character traits over the last few years since I have met him and have a great deal of respect for him. 90 The applicant undertook courses to improve his skills and education both whilst in prison and since being released. He has completed a Certificate II in Aged Care and is ready to attempt Certificate III. 91 There was some suggestion that the applicant's ongoing employment in Broken Hill for UnitingCare will be reassessed if an exemption is not granted. In any event, I accept that the present restrictions on the applicant impede his opportunities for promotion and advancement. I consider that the applicant's ongoing right to work is a relevant factor to be taken account of in this case: see "R" v Commission for Children and Young People.

92 In my view, the opinions of the two psychologists who gave evidence in the proceedings are most persuasive and have been decisive to my determination of whether to grant the orders sought by the applicant. It is to be noted, in particular, that Dr Lennings has given evidence in a number of other proceedings brought under the child protection legislation. I do not doubt his expertise and experience in the field: see Commission for Children and Young People v "S"; Commission for Children and Young People v IK [2005] NSWSC 1136 and "RY" v Commission for Children and Young People. 93 Ms Duffy was fullsome and encouraging in her praise of the applicant's progress since being in prison, describing him as a man who has made a terrific job of rehabilitating himself and who has proven his trustworthiness and reliability. She did not consider he required any conditions on an exemption order and could handle his present limited drinking with his work responsibilities. 94 Further, the Commission accepts the psychologists' evidence that the applicant's offences were an isolated event brought about by an environment of drinking, drug taking, vengence and a dysfunctional domestic situation. None of these characteristics are evident now and haven't been for some considerable period of time. There is no reasonable basis to conclude that any of these factors are likely to re-occur in the future. 95 Having regard for all of the facts and circumstances of this case, I have formed the opinion that the applicant is a fine example of what rehabilitation can achieve for a person convicted of very serious and appalling crimes and who has spent many years in prison. I accept he is completely rehabilitated. I believe the applicant can now regard himself as a credit to himself, his family and the community. One might reasonably ask whether he should pay for his past criminal conduct indefinitely? As Wright J said in "A" and the Commission for Children and Young People (No 2): "It is not a statute intended to impose an additional punishment on a person guilty of a criminal offence of a sexual nature."

96 In balancing all the relevant factors to be considered under s 9(5) of the Act, I have come to the conclusion that the applicant has discharged the onus he bears of demonstrating that he does not pose a present risk to the safety of children. An order should be made accordingly. I do not consider it appropriate to place any conditions on the order I propose to make. In view of my finding that the applicant poses no present risk to the safety of children, it would be unjust and unfair not to provide him with the full extent of relief he seeks from these proceedings. Moreover, I note again the new provisions found in s 33M of the Act providing an opportunity for a re-agitation of this matter, in the event of fresh evidence being brought forward. 97 I make the following orders:

Pursuant to s 9 of the Child Protection (Prohibited Employment) Act 1998 (now repealed) the Industrial Relations Commission of New South Wales orders that the said Act is not to apply to the person referred to pseudonymously as "SB" in these proceedings in respect of the offences for which he was convicted in the Supreme Court of New South Wales on 8 March, 1991 (SC 70200/91).

This order is made without conditions and shall take effect on 27 March, 2007.

Pursuant to s 9(10) of the Act the Industrial Registrar is directed to serve a sealed copy of these orders on the Commissioner of Police and include in that document the name of the person subject to the above orders.

The Industrial Registrar is directed to serve a sealed copy of these orders on the employer, UnitingCare Ageing, Western Region Community Care Services.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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