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Supreme Court 7 February 2007

Commission for Children & Young People v UR

[2007] NSWSC 1099

Also reported as 173 A Crim R 300
Sexual offences
CHILD PROTECTION OCCUPATIONS DEALING WITH CHILDREN WHAT FACTS CONSTITUTE THE OFFENCE PROCEDURE IN ADT NATURE OF JURISDICTION

Citation: Commission for Children & Young People v UR [2007] NSWSC 1099
Court: Supreme Court of New South Wales (Common Law Division)
Date: 7 February 2007
Judge(s): Adams J

Background

The respondent (referred to throughout as "UR") had been convicted in 1984 at Wyong Court of Petty Sessions of an offence under s 81A of the Crimes Act 1900, which concerned indecent assault upon a male person. The charge, as actually recorded, was that UR had committed "an act of indecency" with another male person. Sentence was deferred upon UR entering a recognisance, and he had not reoffended in the more than two decades since.

UR applied to the Administrative Decisions Tribunal (ADT) under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 for a declaration that the Act did not apply to him, so that he could continue working in a child-related occupation. His primary argument was that his conviction did not amount to a "serious sex offence" under the Act; alternatively, he sought a declaration that he posed no risk to the safety of children.

The ADT found in UR's favour on the threshold question, concluding he was not a "prohibited person" at all, and dismissed his application for want of jurisdiction on that basis. The Commission for Children and Young People appealed that decision to the Supreme Court, filing its notice of appeal nine days out of time.

  • Whether UR's 1984 conviction constituted a "serious sex offence" under the Child Protection (Prohibited Employment) Act 1998, making him a "prohibited person"
  • Whether the specific facts underlying the charge (as opposed to the face of the statutory offence) were relevant to determining the nature of the offence
  • Whether the ADT had jurisdiction to determine, as a preliminary matter, whether an applicant was in fact a prohibited person
  • Whether the ADT's application was an abuse of process or procedurally irregular, given that UR sought a declaration of non-application while also contesting that he was a prohibited person at all
  • Whether the form of the ADT's order was objectionable on appeal

Decision

Adams J dismissed the appeal. The central question was whether the conduct underlying UR's 1984 conviction fell within the definition of "serious sex offence" in the Act. The definition captures offences "involving sexual activity or acts of indecency" that were punishable by penal servitude or imprisonment for 12 months or more. Adams J accepted that the specific wording of the charge, not merely the face of the statutory provision, was critical to this analysis.

The charge against UR was framed as committing "an act of indecency," not an indecent assault. This distinction mattered because the offence of indecent assault under s 81A carried a maximum of five years' penal servitude, but the conduct as actually charged and dealt with may have fallen under a provision carrying a lower penalty, potentially below the 12-month threshold required to constitute a "serious sex offence." The court accepted the Tribunal's reasoning that the facts constituting the offence as charged were determinative, rather than the maximum penalty available under the parent provision.

On the procedural question, Adams J held that the ADT had jurisdiction to determine whether UR was a prohibited person as a preliminary or jurisdictional fact, even though that question arose within an application brought by UR himself. The Commission had not objected to this course before the Tribunal, and the court found there was nothing abusive or irregular about the procedure adopted. The argument that the application was an abuse of process was firmly rejected.

Adams J declined to interfere with the form of the ADT's order, despite the Commission's concern that it could be misread by third parties as a binding declaration of general effect. The court noted the order was strictly binding only between the Commission and UR, though it left open whether estoppel might operate in other contexts. An appeal does not lie merely because the form of an order might be misunderstood by some third party.

Orders Made

  • Leave to extend time for filing a notice of appeal was granted.
  • The appeal was dismissed.
  • The Commission is to pay the applicant's costs.

Key Takeaways

  • The specific facts and wording of a charge, not simply the maximum penalty available under the relevant statutory provision, determine whether a conviction constitutes a "serious sex offence" under the child protection prohibited employment regime.
  • An ADT (now NCAT) may determine as a preliminary matter whether an applicant is a "prohibited person," even where that question arises within the applicant's own proceeding seeking a declaration of non-application.
  • Proceeding in this way, where the applicant contests prohibited person status as a threshold issue while alternatively seeking a merits-based declaration, was not characterised as an abuse of process or procedural irregularity by the Supreme Court.
  • The form of a Tribunal order is not, on its own, sufficient grounds for a successful appeal merely because a third party might misinterpret its effect or scope.
  • Under s 5(4) of the Child Protection (Prohibited Employment) Act 1998, an offence that was a "serious sex offence" at the time of commission ceases to be one for the purposes of the Act if the conduct constituting the offence has since ceased to be an offence in New South Wales, a provision relevant to the analysis of older convictions.

Legislation and Cases Referenced

Legislation:
- Child Protection (Prohibited Employment) Act 1998 (NSW), s 5, s 8A, s 9(1)
- Commission for Children and Young People Act 1998 (NSW)
- Crimes Act 1900 (NSW), ss 61N, 81A
- Criminal Legislation (Amendment) Act 1992 (NSW)
- Summary Offences Act 1988 (NSW), ss 4, 5
- Industrial Relations Act 1996 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases:
- Crampton v The Queen (2000) 206 CLR 161
- Crowe v Graham (1968) 121 CLR 375
- Harkin (1989) 38 A Crim R 296
- R v Manson (unreported, NSWCCA, 17 February 1993)
- The Queen v Close 48 VLR 45
- UR v Commission for Children and Young People [2006] NSWADT 78 (decision below)