Facts
9 'AG' at the time of the Application was a seventy-year old man, employed by a specialist school for children with disabilities. In 1951 he was convicted of two Counts of Indecent Assault on a male person. The Act makes it an offence for a person to apply for or remain in child related employment if a "Prohibited Person", being a person who has committed a "Serious Sex Offence".
10 On 24 August 2001, the applicant lodged an Application with the Tribunal seeking a Declaration under s9(1) of the Act, that the Act not apply to him in respect of the offences referred to above and made an Application for a Stay pending determination of the Substantive Application.
11 Under s126(1) of the Administrative Decisions Tribunal Act 1997, ("The Tribunal Act"), an order was made, which would not identify the applicant's name or the circumstances of his employment and he was thus referred to as Mr AG. I have continued that in this judgment, giving effect to that order.
12 After some adjournments, the Tribunal made Orders, granting a conditional Stay of the prohibition on AG's employment and stayed the effect of the Act in respect of the two offences on strict terms and conditions, under which AG has continued his employment.
13 At the time of making orders on 10 September 2001, the tribunal had not referred to the decision of the Industrial Relations Commission of Hungerford J in A v Commission for Children and Young People (2001) 107 IR 211, delivered on 28 August 2001.
14 The Industrial Relation Decision was, a decision affecting an applicant in similar legal circumstances. In that decision, Hungerford J determined that that applicant was not a prohibited person under s5 of the Act because of the operation of s579 of the Crimes Act 1900. Section 579 being in the following terms:
"579. Evidence of proceedings dealt with by way of recognizance after 15 years
(1) Where, following the conviction of any person for an offence or a finding that a charge of an offence has been proved against any person, whether the conviction or finding was before or after the commencement of the Crimes (Amendment) Act 1961 :
(a) sentence in respect of the conviction was suspended or deferred upon the person entering into a recognizance or, in substitution for sentence in respect of the conviction, the person was required to enter into a recognizance, or no conviction in respect of the finding was made and the person was discharged conditionally on his or her entering into a recognizance, and
(b) a period of fifteen years has elapsed since the recognizance was entered into:
(i) without the recognizance having been forfeited during that period or a court having found during that period that the person failed to observe any condition of the recognizance, and
(ii) without the person having, during that period, been convicted of an indictable offence on indictment or otherwise or of any other offence punishable by imprisonment (otherwise than under section 82 of the Justices Act 1902 as amended by subsequent Acts) or without a finding during that period that a charge of such an indictable or other offence has been proved against the person,
the conviction or finding shall, where that period expired before the commencement of the Crimes (Amendment) Act 1961 , as on and from that commencement, or, where that period expires or has expired after that commencement, as on and from the expiration of that period:
(c) be disregarded for all purposes whatsoever, and
(d) without prejudice to the generality of paragraph (c), be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect.
Without prejudice to the generality of the foregoing provisions of this section, any question asked of or concerning that person in or in relation to any criminal, civil or other legal proceedings otherwise than by his or her counsel, attorney or agent or other person acting on his or her behalf may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into.
(2) Notwithstanding the provisions of subsection (1), where in any criminal, civil or other legal proceedings the person first referred to in that subsection, by himself or herself, his or her counsel, attorney or agent or other person acting on his or her behalf, otherwise than in answer to a question that can, in accordance with the last paragraph of that subsection, be answered in the negative, makes an assertion that denies the fact that the conviction or finding took place or that the recognizance was entered into, then the conviction, finding or recognizance is admissible:
(a) in those proceedings, as to the character, credit or reputation of the person so referred to,
(b) in any prosecution for perjury or false swearing founded on the assertion.
The non-disclosure of the conviction, finding or recognizance in the making or giving of a statement or evidence as to the good character, credit or reputation of the person so referred to shall not of itself be taken, for the purposes of this subsection, to mean that the statement or evidence contains such an assertion.
(3) In this section "legal proceedings" includes any application for a licence, registration, authority, permit or the like under any statute.
(4) This section does not affect the operation of section 55 of the Defamation Act 1974 , or the operation of section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995 , for the purposes of section 55 of the Defamation Act 1974 .
15 It can be seen from the section, that, in the particular circumstances set out, the conviction is not admissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect (emphasis added). But in particular it is noted that the offence is to be "disregarded for all purposes whatever".
16 It is convenient here to set out paras 10,11,12 and 13 of the Tribunal's decision:
" 10 . Hungerford J rejected the respondent's argument that s579 of the Crimes Act and the relevant provisions of the Child Protection Act were inconsistent and as such the earlier enacted Crimes Act must yield to the later enacted Child Protection Act . Nor did Hungerford J accept the respondent's submission that s12(1) of the Child Protection Act which must provide that the Statute "prevails to the extent of any inconsistency between it and any other Act or law" was a complete answer to the relationship between the two (apparently) competing statutes.
11 .Hungerford J took the view [at 43] that there is nothing in the statutory scheme of the Child Protection (Prohibited Employment) Act ,….to make it clearly and indisputably contradictory of s579. Indeed, I am satisfied that "the fairer and more convenient" construction, to adopt the approach of Mason J in Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (147 CLR 297 at p321), and one which is consistent with the competing provisions, would only be for them to operate as each subject to and in empathy with the other." He explained [at 44]:
The very basis of the scheme in the Child Protection (Prohibited Employment) Act is the status of a person as a "prohibited person" which, in turn, is made to depend upon the person having been convicted of a serious sex offence; if there not be at any relevant time such a conviction, then, it must be the case, the person would not be a prohibited person. In other words, I see no difficulty in the operation of the statute, either as to its terms or in their implementation, in the conviction concerned being one which is only properly recognisable and effective as such. Where a conviction for an offence for some reason, such as s 579 here, is no longer truly effective in any respect then, in my view, it should not, indeed cannot, be sufficiently active or operative to be a relevant conviction for the purposes of s 5 of the Child Protection (Prohibited Employment) Act ; it has, by statute, to be disregarded and is no longer of any legal force or effect. That view of the interaction between the two provisions seems to me to be consistent with the ordinary meaning of the words used in each and as being consistent with the legislative intent thereby evinced as to both schemes. I see no ambiguity in the provisions as so understood.