Citation: [2023] NSWLC 14
Court: Local Court of NSW
Date: 13 September 2023
Judge(s): LCM Olischlager
Background
The defendant was a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW), meaning he was subject to ongoing obligations to report specified personal information to police. Two charges were brought against him alleging he failed to comply with those obligations by not disclosing his membership of several registered licensed clubs, including an RSL club, two leagues clubs, and a rugby league club.
The defendant disputed both that any obligation to disclose applied and, in the alternative, that he had either already disclosed the relevant memberships orally or had a reasonable excuse for not doing so. The agreed facts confirmed he held the club memberships at the relevant times and that no membership details appeared on the register.
The core dispute turned on the meaning of section 9(1)(g) of the Act, which requires a registrable person to report affiliations with any club or organisation that has "child membership or child participation in its activities." None of the clubs in question permitted children to be members, but all provided designated children's play areas and sponsored junior sporting associations.
Legal Issues
- Whether the registered licensed clubs particularised in the charges had "child participation in its activities" within the meaning of section 9(1)(g) of the Act, thereby triggering a reporting obligation.
- Whether, if a reporting obligation existed for Sequence 1, the defendant's oral disclosure to police at his initial report satisfied that obligation.
- Whether, if a reporting obligation existed for Sequence 2, the defendant had a reasonable excuse for non-disclosure based on advice received from a police officer.
Decision
Issue 1: Meaning of "child participation in its activities"
The court held that the phrase "child participation in its activities" directs attention to what the club itself does, and whether children participate in those activities (at [30]). Sponsorship of junior sporting associations is an activity of the club, but children are merely the potential recipients of that benefit rather than participants in the act of sponsorship (at [31]). The presentation functions held for junior associations were found to be activities of those separate associations, not of the clubs themselves (at [31]).
The court also found that designated children's play areas represent a passive facility rather than an active club activity. The club's role in providing that space was characterised as passive, with adult supervision of children being the operative element rather than any conduct by the club (at [32]). Accordingly, the clubs did not have "child participation in its activities," and the defendant was not obliged to report his memberships (at [29], [33]).
Issue 1 (further): Purposive and contextual considerations
The court observed that requiring disclosure of licensed club membership would not advance the Act's protective objectives (at [34]). Where a licensed premises requires adult supervision of children, the concern about unsupervised contact between registrable persons and children is materially diminished (at [34]). The court also noted that registrable persons can attend such clubs without membership, as temporary members or guests, and that treating club membership as reportable would produce an arbitrary outcome compared with similar venues such as hotels and restaurants with children's play areas, which attract no equivalent obligation (at [35]-[36]). Any remaining ambiguity on the point was to be resolved in the defendant's favour, given the severity of the maximum penalty of five years imprisonment (at [36]).
Issue 2: Oral disclosure (Sequence 1)
Assuming the reporting obligation applied, the court accepted the defendant's unchallenged evidence that he orally disclosed his memberships to the interviewing officer at his initial report in June 2018 (at [40]). The court found it likely that the officer advised him that club membership was not information required to be recorded in the forms, and noted the defendant appeared candid in all other aspects of his compliance with the Act (at [40]-[41]).
Issue 3: Reasonable excuse (Sequence 2)
For the second charge, the court accepted that the defendant formed the view, based on the police officer's earlier advice, that disclosure of his Souths Rugby League Club membership was unnecessary (at [42]). Reliance on advice provided by a police officer was found to constitute a reasonable excuse for the non-disclosure (at [42]).
Orders Made
- Verdict of not guilty entered on Sequence 1
- Verdict of not guilty entered on Sequence 2
Key Takeaways
- Under section 9(1)(g) of the Child Protection (Offenders Registration) Act 2000 (NSW), the phrase "child participation in its activities" requires an assessment of the club's own activities and whether children participate in those activities, not merely whether children are present on club premises or benefit from club sponsorship (at [30]-[31]).
- Sponsorship of junior sporting associations by a club does not constitute child participation in that club's activities, as children are recipients of the sponsorship rather than participants in the act of sponsoring (at [31]).
- Designated children's play areas within licensed clubs do not, on the reasoning in this decision, make such clubs ones with "child participation in its activities," because the club's provision of that space is a passive facility rather than an active undertaking by the club (at [32]).
- Where ambiguity exists about the scope of a reporting obligation that carries a maximum penalty of five years imprisonment, the Local Court resolved that ambiguity in favour of the defendant (at [36]).
- Reliance by a registrable person on advice from a police officer that a category of information need not be disclosed can constitute a reasonable excuse for non-disclosure under section 17(1) of the Act (at [42]).
Legislation and Cases Referenced
Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Interpretation Act 1987 (NSW)
- Child Protection (Offenders Registration) Amendment Act 2004 (NSW)
Cases
- The Queen v A2 (2019) 373 ALR 214; [2019] HCA 35