UB v Commission for Children and Young People & Anor

Administrative Decisions Tribunal Act 1997 (NSW) LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 (NSW) Crimes Act 1900 (NSW) Supreme Court Act 1970 (NSW)

Commission for Children and Young People v V [2002] NSWSC 949 CASES CITED : R v Commission for Children and Young People [2002] NSWIR Comm 101 UB v Commission for Children and Young People [2006] NSWADT 125 (unreported, 27 April 2006)

UB PARTIES : Commission for Children and Young People Administrative Decisions Tribunal

COUNSEL : Mr A. Canceri (Pl) Mr I. Bourke (Def)

SOLICITORS : Byles Canceri Lawyers (Pl) Crown Solicitor (Def)

LOWER COURT JURISDICTION : Administrative Decisions Tribunal

LOWER COURT MEDIUM NEUTRAL CITATION : UZ v Commission for Children and Young People

• 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30149/06 UB v Commission for Children & Young People & Anor

JUDGMENT 1 HIS HONOUR: On 31 March 2005, the plaintiff was convicted on a count of possessing child pornography under s578B(2) of the Crimes Act 1900 (NSW). It was regarded as a very serious offence (it involved possession of 6,000 pornographic images of children). It has been referred to as an index offence. 2 He wishes to undertake or remain in child related employment (inter alia, he wants to embark in a career in the film and television industry, to set up an acting school and to continue involvement with soccer coaching). 3 For present purposes, the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW) (the Act) had application. Under the provisions of the Act he is a "prohibited person". Section 6(1) of the Act makes it an offence for a prohibited person to apply for, undertake or remain in child-related employment. The Act is an act expressed to "prohibit the employment in child-related employment of persons found guilty of committing certain serious sex offences: and for related purposes." 4 He applied to the Administrative Decisions Tribunal (the Tribunal) for an order, pursuant to s9(1) of the Act, declaring that the Act was not to apply to him in respect of the offence. 5 Section 9 confers a discretionary power to make the order sought. The section contains the following:- "(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." 6 The intention of subs (4) would appear to be to impose a threshold requirement to the exercise of the discretionary power (see, inter alia, Rix v State of New South Wales & Ors [2005] NSWSC 329). Uninstructed by other authority, I would be inclined to maintain the view that the intention of this provision was to prohibit the making of an order under the section unless the threshold requirement had been met. However, this question does not need to be further pursued in this case. 7 Sub-section (5) thereof enumerates various matters which are to be taken into account in deciding whether or not to make an order under the section. 8 Sub-section (9) thereof enables orders to be made subject to conditions. 9 In any such application, the onus is borne by the applicant to demonstrate an entitlement to relief. It is common ground that the standard of comfortable satisfaction (or what is often referred to as the Briginshaw standard) has application. 10 The application was heard by a judicial member (A.Britton). On 27 September 2006, she dismissed the application. 11 The judicial member has provided written reasons for her decision (the reasons). 12 The final paragraph (paragraph 51) of the reasons makes it clear that the application was unsuccessful because the plaintiff had failed to discharge the onus borne by him. 13 In reaching that result, the judicial member appears to have applied what had been said by Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949. This was a decision which analysed the earlier judgment of Haylen J in R v Commission for Children and Young People [2002] NSWIR Comm 101 and followed certain of what had been said therein.

14 On 27 October 2006, the plaintiff filed a Summons in this Court. It seeks, inter alia, the setting aside of the decision of the Tribunal. The claim for relief looks to s69 of the Supreme Court Act 1970 (NSW) (judicial review is sought). It is said that there has been error of law on the face of the record (the record relied on being the reasons given by the Tribunal for its decision). 15 The plaintiff's application was heard on 29 May 2007. The parties were represented by Counsel. Written submissions were made, which were supplemented by oral argument. After hearing from the parties, judgment was reserved. 16 The plaintiff has pursued two avenues of attack. One concerns an earlier decision of the judicial member in UB v Commission for Children and Young People [2006] NSWADT 125 (unreported, 27 April 2006). The other is a contention that the Tribunal failed to consider whether the imposition of conditions would lift the plaintiff over the risk threshold. 17 Before proceeding further, I record that no challenge is made to the findings of fact made by the judicial member. The complaint is restricted to what are said to be errors of law. 18 The first avenue of attack concerns a question of the proper construction to be given to sub-section (4). This provision requires a finding that the plaintiff does not pose a risk to the safety of children. 19 As earlier mentioned, the judicial member approached her task by applying what had been said by Young CJ in Eq (see, inter alia, paragraphs 7-9, 43, 50 and 51 of the reasons). His Honour considered that a more balanced view of the provision was a risk to the safety of children, bearing in mind all the circumstances in which the prohibited person is likely to be employed. He said there had to be a real and appreciable risk (as opposed to a minimal risk). He further said [at paragraph 45(3)]:- "… If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has a discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised in favour of an applicant unless there was a good reason not to so exercise it." 20 The plaintiff contends that the test that should have been applied is that which was expressed by the judicial member in UB. It was said to be a test of whether or not the applicant posed a real and material risk of hands-on offending in an employment context. 21 It is further said that not only did she not apply that test, she did not even refer to her decision in UB. 22 It is true that there is no express reference to her decision in UB. Be that as it may, in the expression of her reasons, she did have regard to the concept of "hands-on offending" (see, inter alia, paragraph 34 of the reasons). 23 What is put forward as being the test applied in UB has some uncertainty of meaning. In my view, it lacks precision. It seems to involve the concept of contact offences. Whatever it does mean, I do not consider that this approach correctly expresses the test that should be applied. 24 It may be that the judicial member appreciated that whatever that test contemplated, it was narrower than that espoused by Young CJ in Eq and that she was bound to follow what was said by him. Whatever be the position, I consider that the judicial member applied the correct test which was, was there a real risk to the safety of children. 25 It was said that she erred in applying the test in the context of children at large (as opposed to risk in an employment context). I do not accept that submission. Whilst the words "children at large" appear in the reasons (see paragraph 49), it seems to me that, in substance, she had regard to the test in an employment context. In my view, this is manifested by what was said by the judicial member in other paragraphs of her reasons (see, inter alia, paragraph 50). I might add that even if a different view was taken on this matter, I would not be persuaded that a disturbance of her decision would be justified. 26 Accordingly, I am not satisfied that the judicial member erred by applying the wrong test in the application of the provisions of subs (4). 27 I now turn to the second avenue of attack. Sub-section (9), in its terms, enables orders to be made under the section, subject to conditions. Uninstructed by authority, I would be inclined to the view that the question of the making of orders subject to conditions would only arise after the threshold requirement imposed by subs 4 had been met. However, inter alia, Young CJ in Eq seems to have taken a different view (paragraph 46(4)). 28 For present purposes, this matter need not be pursued and is perhaps better left for another occasion. 29 It is clear from the reasons that the judicial member was well aware of the sub-section and of the views expressed by Young CJ in Eq (see, inter alia, paragraphs 9 and 43 of the reasons). In paragraph 43, she expressly posed the matter as a "key issue". In the circumstances, I am not persuaded that she did err as contended by the plaintiff. It seems to me to be at least implicit in her reasons that in this case an order subject to conditions would not have lifted the plaintiff over the threshold. She regarded it as a matter in respect of which he had failed to discharge the onus of proof. 30 For completeness, I may add that it does not seem to me to have been a case in which it was feasible to make an order subject to conditions.

31 Section 69 affords relief of a discretionary nature. It also needs to be emphasised that mere demonstration of error of law does not necessarily entitle the plaintiff to relief. Any error must be material to the decision and so justify its disturbance. 32 In this case, I am not satisfied that the plaintiff has made out any error of law. In the alternative, if a different view be taken on that matter, I am not satisfied that any basis has been shown for a disturbing of the decision. 33 I should also mention that there was some inconclusive debate as to whether or not the plaintiff had an appeal as of right in respect of error of law (see Rix v State of New South Wales). The matter was not pursued because the defendant was not contending that the plaintiff should be deprived (for discretionary reasons) of any entitlement under s69 by reason of the existence of any such appeal as of right. 34 Subsequent to the reserving of judgment, research revealed that the plaintiff did have internal rights of appeal (to an Appeal Panel of the Tribunal). Section 119 of the Administrative Decisions Tribunal Act 1997 (NSW) confers a further avenue of challenge from an Appeal Panel to this Court. If the defendant had taken a different approach to the application for judicial review, the Court may have been disposed to have dismissed these proceedings on the discretionary ground that the plaintiff should have pursued the internal avenues of appeal. 35 The application fails. The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The exhibit may be returned. **********

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