Lack of pupil-teacher relationship frees offender from NSW prohibition

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Lack of pupil-teacher relationship frees offender from NSW prohibition

A teacher convicted in Tasmania of having sex with a girl under 17 will not be barred from applying for teaching positions in NSW because his actions do not amount to an offence in that state, according to an Administrative Decisions Tribunal (NSW) decision.

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A teacher convicted in Tasmania of having sex with a girl under 17 will not be barred from applying for teaching positions in NSW because his actions do not amount to an offence in that state, according to an Administrative Decisions Tribunal (NSW) decision.
 
The tribunal heard the sexual relations between the two were consensual and that they did not arise as a result of or in the context of a pupil-teacher relationship. The tribunal found that while it is an offence in NSW for a teacher to have carnal knowledge of a pupil under 17, consensual sexual relations with a person over the age of 16 are not unlawful in NSW today, nor were they in 1981.
 
As the teacher had not, therefore, been convicted of a 'serious sexual offence' as defined by the Child Protection (Prohibited Employment) Act 1998, he was not classed as a prohibited person. This meant the tribunal had no jurisdiction to grant the declaration the teacher sought exempting him from the Act.
 
Background
 
A teacher, convicted by the Supreme Court of Tasmania in 1981 of having sex with a girl under 17, applied for a declaration that the Child Protection (Prohibited Employment) Act 1998 not be applied in his application for a NSW position as a high school or TAFE teacher. The Child Protection (Prohibited Employment) Act makes it an offence for people convicted of 'serious sex offences' to apply for or undertake 'child-related employment.'
 
Findings
 
The NSW Administrative Decisions Tribunal found that the offence the teacher was convicted of involved sexual intercourse with a girl 16 years old. Such conduct is proscribed (or was proscribed in 1981) by section 124 of the Criminal Code of Tasmania. However, evidence tendered to the Tasmanian court indicated that the sexual relations were consensual and that they did not arise as a result of or in the context of a pupil-teacher relationship. The tribunal said that at the time the girl and the teacher met, she was not even aware that he was a teacher at her school.
 
The tribunal found that while it is an offence in NSW for a teacher to have carnal knowledge of a pupil under 17, consensual sexual relations with a person over the age of 16 are not unlawful in NSW today, nor were they in 1981. 'An essential element for the Commission of an offence pursuant to s.73 of the Crimes Act 1900 is that the victim be in relation to the teacher 'his pupil'. She was not such a 'pupil' within the meaning of s.71 or s.73 of the Crimes Act 1900.'
 
It concluded that the teacher's offence was not a serious offence as it would not have been classed as an offence in NSW either in 1981 or today. Accordingly, as he had not been convicted of a 'serious sexual offence' as defined by the Act, he was not a prohibited person. This meant the tribunal had no jurisdiction to grant the declaration the teacher sought exempting him from the Child Protection (Prohibited Employment) Act.
 
See: DP v Commission for Children and Young People[2003] NSWADT 48, (10 March 2003).
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