NSW sex offenders legislation in the spotlight

Cases

NSW sex offenders legislation in the spotlight

The Child Protection Legislation Amendment Act 2002 (NSW) has extended the operation of NSW legislation designed to promote the protection of children. Certain employers in industries where contact with children is usual or common have obligations under the principal legislation to investigate the background of prospective employees. A ban from doing these types of work applies to those persons found to be prohibited persons under the legislation. Certain offenders also are required to register under the legislation to allow their movements to be monitored.

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The Child Protection Legislation Amendment Act 2002 (NSW) has extended the operation of NSW legislation designed to promote the protection of children. Certain employers in industries where contact with children is usual or common have obligations under the principal legislation to investigate the background of prospective employees. A ban from doing these types of work applies to those persons found to be prohibited persons under the legislation. Certain offenders also are required to register under the legislation to allow their movements to be monitored.
 
The latest amendment (that commenced on 7 February 2003) makes all prescribed criminal convictions (eg sex related offences) relevant in considering a candidate for child-related employment. This means that all criminal convictions coming within the scope of the legislation are potentially relevant - ie these offences may possibly be taken into account irrespective of the offence, the time it was committed, or age of the candidate at the time of conviction.
 
The previous provisions stated that candidates' convictions could not be considered if they had no criminal record for 15 years after the offence. The legislation has also been extended to include police and other holders of statutory offices in the list of candidates subject to screening.
 
An explanatory memorandum is at the NSW Parliament website, and the full text is at the Parliamentary Counsel's Office site
 
Two recent cases illustrate the practical application of this legislation as it was before the latest amendment commenced.
 
Teacher declared a 'prohibited person' 30 years after conviction
 
A teacher was declared a 'prohibited person' under the legislation despite the offence in issue haven taken place 30 years ago. The Commission for Children and Young People appealed a single-judge decision, claiming that under the Act, the IRC had no jurisdiction to set aside the previous conviction. A full bench of the IRC upheld the appeal.
 
The Act merely provided that those offences may be disregarded. The onus was on the teacher to prove he was no longer a risk to children.
 
Background
On 28 August 2001 Justice Hungerford made a declaration that 'A' was not a 'prohibited person' within the meaning of s5 of the Child Protection (Prohibited Employment) Act 1998 (NSW). This Act prohibits certain people from engaging in 'child-related employment'. This includes a person who is a 'person convicted of serious sex offence'.
 
The respondent-employee was convicted of carnally knowing a girl under the age of 16 years of age some 30 years ago when he was aged 17.
 
The respondent is currently employed as a secondary school teacher with the Department of Education and Training. If he were found to be a 'prohibited person', so as to make the statute applicable to him, he would be unable to remain or to continue in 'child-related employment' as defined, including his present employment as a secondary school teacher, unless an order were made by a relevant tribunal declaring the statute was not to apply to him, the tribunal being satisfied that he no longer posed a risk to the safety of children.
 
Section 579 of the Crimes Act 1900 provides that certain convictions may be disregarded for all purposes after the expiration of 15 years from the date of the conviction.
 
Conclusions
 
The full bench of the Commission was asked to grant leave to appeal and to hear an appeal against this decision.
 
Leave to appeal was granted because the Commission said the appeal raised important questions as to the operation and interaction of two important pieces of legislation; in particular, the breadth with which the reference to a 'conviction' in the definition of a 'prohibited person' in s 5 of the Child Protection (Prohibited Employment) Act is to be read, in light of s 579 of the Crimes Act.
 
Although the Commission did not disagree with the description of s 579 as conferring a 'right' upon a person that had been convicted of a serious sex offence, it did not agree with the conclusion at first instance as to the interaction between the Child Protection (Prohibited Employment) Act and the Crimes Act. That is, it did not accept that, by virtue of s 579 of the Crimes Act a person who has been convicted of a serious sex offence as defined, should in some way have that conviction treated as though it was 'no longer truly effective in any respect' or that 'it should not, indeed cannot, be sufficiently active or operative to be a relevant conviction for the purposes' of the Child Protection (Prohibited Employment) Act.
 
Such a construction did not pay sufficient regard to the broad and comprehensive nature of the Child Protection (Prohibited Employment) Act, the purpose to which the Act is directed or the context in which that legislation came into operation.
 
The legislature has taken the view that without legislation of this exceptional and all encompassing nature, the social evils to which the statute is directed would not be effectively remedied or ameliorated. Although it is unusual for an approach of this kind to be adopted (that is, legislation by reference to a class of persons, without affording any of them, the opportunity to be heard or notification being given to any member of the class) in light of the significant mischief to which the legislation is directed, the unusual and exceptional has been adopted by the legislature notwithstanding that rights might be affected and apparent hardship could occur.
 
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 was, however, clear that a person who has not transgressed in the 15 years since the relevant recognizance period has expired, was entitled to have that circumstance taken into account in the consideration whether they any longer pose a threat or danger to children.
 
The Child Protection (Prohibited Employment) Act did not provide an absolute bar to a person who falls within the definition of 'prohibited person' from ever working in child-related employment. The practical effect of the system is that a person convicted of such a charge is required to establish, by application to an independent tribunal, the matters set out in s 9 of the statute. That is, in substance, that the applicant no longer poses a risk to the safety of children.
 
See: Commission for Children and Young People v 'A' [2003] NSWIRComm 6, Industrial Relations Commission (NSW) in Court Session (Wright P, Walton VP and Kavanagh J) 29 January 2003.
 
Sexual offence and generally bad record taken into account
 
A man’s police history and his conviction for sexual assault prevented him from working with children. He was, however, given permission to apply again after one year for an exemption under the legislation instead of the five years otherwise required.
 
Background
 
The applicant who was 33 years of age had a conviction for a sexual offence within the meaning of the Protection (Prohibited Employment) Act 1998 NSW which occurred in 1984 when he was aged 14 years of age. As a consequence he is prevented from engaging in child-related employment unless the Tribunal declares otherwise.
 
The applicant sought a declaration in respect of work as a school cleaner and children's soccer coach. He did not dispute that he is a prohibited person as defined by the Act.
 
The applicant had several police convictions for offences including: sexual assault, drink driving, offensive conduct and apprehended violence orders.
 
Conclusions
 
On the applicant's own evidence the Tribunal was satisfied in finding that the applicant has a serious binge drinking problem which has existed for very many years and which occurs about once per month. On these occasions he becomes extremely drunk and engages in unlawful behaviour that can be dangerous, anti-social, or offensive. Of particular concern was the fact that most of the incidents that have resulted in police activity had occurred in the last 2 years.
 
The Tribunal held that the applicant's sexual offence in 1984 would be insufficient to warrant refusing his application. However, sec 9(5)(e) of the Act also directed the Tribunal to consider 'the seriousness of the prohibited person's total criminal record', and sec 95(f) directed consideration of 'such other matters as the Tribunal considers relevant'. The non-sexual criminal convictions, the apprehended domestic violence orders and the strong inference that the problematic drinking and associated belligerent behaviour was accelerating, all fell within the ambit of these sub-sections of the Act.
 
It was only the 1994 and 1996 criminal charges that contained sexual elements. Whilst there may be some risk that when drunk the applicant may engage in sexually inappropriate behaviour with females under 18 years of age with whom he may be working or who are nearby, of greater concern to the Tribunal was the risk of inappropriate aggressive non-sexual behaviour with such persons.
 
The applicant's regularly driving while intoxicated also led to the conclusion that he has a diminution of judgement on such occasions that could easily lead to unintended but serious injury or worse.
 
The Act prevents the applicant from making a further application for an exemption from the provisions of the legislation for a period of 5 years from the time an application is dismissed. The Tribunal determined to shorten this period to one year, which will expire on 5 September 2003.
 
This was because most of the reasons for refusing this application were connected with the applicant's alcohol problem. If the applicant were to address this issue in a meaningful way, by seeking assistance from an appropriate agency, any subsequent application he might make would be very likely to succeed.
 
See: CU v New South Wales Commission for Children and Young People [2003] NSWAT 27 - NSW Administrative Appeals Tribunal (Kelly T (DP) - 5 February 2003.
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