ࡱ> w(m / 0DTimes New Roman(0(:A 0 hDArialNew Roman(0(:A 0  DWingdingsRoman(0(:A 0 @(.2  @n?" dd@  @@`` >6 \. .   8    9  !"#$%&'()*+,-. 0e0e     A@  A5% 8c8c     ?1 d0u0@Ty2 NP'p<'pA)BCD|E||S" 3fff3333f3f@37lO ʚ;ʚ;g42d2d@:A 0ppp@  <4!d!dl # 0<4ddddl # 0g4,d,d@:A 0Tp6 p]<4KdKdl$ 0@ 0___PPT10 pp___PPT9? %O =bTeachers and the Law Conference 2005 Commission for Children and Young People and applications under s.9 of the Child Prohibited (Prohibited Employment) Act 1998 Anthea Tomlin Assistant Crown Solicitor Crown Solicitor s Office%$$3fK26(33A  G What is the Commission for Children and Young People? - established by the Commission for Children and Young People Act 1998 and has been in existence for 5 years - an independent organisation that reports directly to the NSW Parliament - the Parliamentary Committee on Children and Young People oversees its work. . rH(51&(; j  "What does the Commission do? Its functions are: (a) to promote the participation of children in the making of decisions that affect their lives and to encourage government and non-government agencies to seek the participation of children appropriate to their age and maturity, (b) to promote and monitor the overall safety, welfare and well-being of children in the community and to monitor the trends in complaints made by or on behalf of children, 4 ("  #! (c) to conduct special inquiries into issues affecting children, (d) to make recommendations to government and non-government agencies on legislation, policies, practices and services affecting children, (e) to promote the provision of information and advice to assist children, (" (! $J (f) to conduct, promote and monitor training on issues affecting children, (g) to conduct, promote and monitor public awareness activities on issues affecting children, (h) to conduct, promote and monitor research into issues affecting children, (i) to participate in and monitor screening for child-related employment, K (K % (j) to develop and administer a voluntary accreditation scheme for persons working with persons who have committed sexual offences against children, (k) to support and assist the Child Death Review Team in the exercise of its functions. (l) to be a party to proceedings brought under the Child Protection (Prohibited Employment) Act 1998 and make submissions in opposition to or support of the making of the order. T (2N,   & The Commission is governed by the following principles (a) the safety, welfare and well-being of children are the paramount considerations, (b) the views of children are to be given serious consideration and taken into account, (c) a co-operative relationship between children and their families, and between children and their community, is important for the safety, welfare and well-being of children. ( ( ' Origins of the Commission and the Child Protection (Prohibited Employment) Act 1998 - resulted from the Royal Commission into the NSW Police Service, which included inquiry into allegations about the protection of paedophiles by NSW police. V ("1*Y   (6 Recommendations of the Royal Commission A Commission  with the capacity to oversee and co-ordinate the delivery of services for the protection of children from abuse (including sexual, physical and emotional abuse and neglect). & [which] should have more than advisory role. 4 (**.   . Recommendations of the Royal Commission In light of the evidence it received which demonstrated  the tenacity and duplicity of paedophiles, the repetitive and obsessive nature of their offending, the low detection and conviction rates and the inability of the system in the past to remove paedophiles from position in which they [had] direct access to children. , "p)G) G*6 Commissioner with the power to issue a certificate of unacceptable risk where the Commissioner considers that the involvement of any person in work or services involving having children in their care or under their supervision would expose a child or children to an unacceptable risk of sexual abuse >7 (,B ,   + Result was the Child Protection (Prohibited Employment) Act 1998 Parliament created a legal presumption that persons convicted of serious sex offences pose a risk to the safety of children where they are employed, or seek to be employed, in child-related employment. J (214I    IEffect on employers 1. Must not commence employing or to continue to employ a prohibited person in child-related employment. Offence to do so with a maximum penalty being $11,000 for a corporation, and $5,500 in any other case. 2. Must not commence employing a person without requiring that person to disclose whether or not a prohibited person . Offence to do so with maximum penalty $22,000 for a corporation, and $11,000 in any other case. PbCb B  /  Effect on employees 1. Must not apply for, undertake or remain in child-related employment. Offence to do so with a maximum penalty $11,000, or imprisonment for 12 months, or both. 2. Must not make a statement that the person knows is false when disclosing whether or not a prohibited person. Offence with a maximum penalty of $1,100, or imprisonment for 12 months, or both. xb#BbbD b B JProhibited person 1. a person convicted of a serious sex offence; or 2. a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000. By2, Serious sex offence includes: - an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or - an offence, involving sexual activity or acts of indecency, that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in New South Wales, or > (2  0 - the offence of causing sexual servitude or the offence of conducting a business involving sexual servitude where the person against whom the offence is committed is a child, or offences relating to the promoting or engaging in acts of child prostitution; obtaining benefit from child prostitution; exercising lawful control over premises at which a child participates in an act of child prostitution; using children for pornographic purposes or a similar offence under a law other than a law of New South Wales, or 2S-- - it also includes an offence: o an element of which is an intention to commit an offence referred to above in paragraph (a), (b) or (d), or o of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs.  (2,#nq KAn offence that was a serious sex offence at the time of its commission is not a serious sex offence if the conduct constituting the offence has ceased to be an offence in New South Wales. An offence involving sexual activity or an act of indecency is not a serious sex offence if the conduct constituting the offence: (a) occurred in a public place, and (b) would not have constituted an offence in New South Wales if the place were not a public place. BK1  The Act is not confined to known paedophiles  it applies to people who have convictions for a serious sex offence, regardless of whether those offences were committed against children or against adults.23 Registerable person a person whom a court has at any time sentenced in respect of a registrable offence. Registerable offences include a number of the offences that are encompassed above that have a sexual element and related to children, as well as: - the offence of murder, where the person murdered is a child, and - the offence of kidnapping a child except where the person found guilty of the offence was, when the offence was committed or at some earlier time, a parent or carer of the child. "j4Child-related employment Employment that primarily involves direct contact with children where that contact is not directly supervised in any of the following categories: (i) involving the provision of child protection services, (ii) in pre-schools, kindergartens and child care centres (including residential child care centres), (iii) in schools or other educational institutions (not being universities), "5in detention centres (within the meaning of the Children (Detention Centres) Act 1987), (v) in refuges used by children, (vi) in wards of public or private hospitals in which children are patients, (vii) in clubs, associations or movements (including of a cultural, recreational or sporting nature) having a significant child membership or involvement, (viii) in any religious organisation, 2" 0%76t (ix) in entertainment venues where the clientele is primarily children, (x) as a babysitter or childminder that is arranged by a commercial agency, (xi) involving fostering or other child care, (xii) employment involving regular provision of taxi services for the transport of children with a disability, (xiii) employment involving the private tuition of children, uuI+7@employment involving the direct provision of child health services, (xv) employment involving the provision of counselling or other support services for children, (xvi) employment on school buses, (xvii) employment at overnight camps for children, and (xviii) the performance of the duties of an authorised carer. A" A81includes: - performance of work under a contract of employment, - performance of work as a self-employed person, or as a subcontractor, - performance of work as a volunteer for an organisation, - undertaking practical training as part of an educational or vocational course, or - performance of work as a minister of religion or other member of a religious organisation. The requirement that the employment primarily involves direct contact with children, where that contact is not supervised, is satisfied if that direct contact is a primary or essential requirement of the job. The proportional amount of time that a person spends in the course of their employment having direct unsupervised contact with children is irrelevant to an assessment of whether a person is in child-related employment.22PA9;h9Applications for an order declaring the Act does not apply - Any person who is a prohibited person can apply to the Administrative Decisions Tribunal. The person does not have to be in, or want to work in, child-related employment to be able to apply for an order. - A person must be an employee who is liable to be dismissed, or was dismissed from that employment under the Child Protection (Prohibited Employment) Act 1998 to be able to apply to the Industrial Relations Commission for an order. 8;@2L:Effect of an order - an order relates to a specified offence or offences. - if a person, subsequent to an order being made, commits a further serious sex offence, he/she again becomes a  prohibited person . ";!When can an order be made? Only if the IRC or the ADT considers that the person the subject of the proposed order does not pose a risk to the safety of children. The onus is on the applicant to show the ADT or the IRC that he or she does not pose a risk. - not a mere theoretical or possible risk arising from the fact of a previous conviction, but an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights""|<:  risk to the safety of children is broader than the risk of sexual abuse  safety relates not only to safety from sexual offences but safety from physical or emotional injury of any kind (X v Commissioner for Children and Young People [2001] NSWADT 130, 9 August 2001 (at [38])).,/-=QWhat is taken into account? (a) the seriousness of the offences with respect to which the person is a prohibited person, (a1) the period of time since those offences were committed, (b) the age of the person at the time those offences were committed, (c) the age of each victim of the offences at the time they were committed, "R4> (d) the difference in age between the prohibited person and each such victim, (d1)the prohibited person s present age, (e) the seriousness of the prohibited person s total criminal record, (f) such other matters as the tribunal considers relevant. (a) he / she has a seriously arguable case; (b) at the requisite level the applicant does not pose a risk to the safety of children (at [22]). In this regard the Tribunal must have regard to the criteria set out in s.9(5) of the Act; (c) he / she will suffer detriment if the stay is not granted; and (d) the balancing of relevant considerations (including the question of the degree of the likelihood of success of the applicant in the substantive proceedings) favours the grant of a stay. ,>?Stay of operation of the Act Applicant will have to show that: (a) a seriously arguable case; (b) the applicant does not pose a risk to the safety of children (see the criteria set out in s.9(5)) (c) detriment if the stay is not granted; and (d) the balancing of relevant considerations (including the question of the degree of the likelihood of success of the applicant in the substantive proceedings) favours the grant of a stay. ",AW@TConditions - can be imposed on a stay or an order Examples: - applicant  not engage in any child-related employment ... involving females between the ages of 12 and 18 years . - applicant not engage in any child-related employment other than the employment in respect of which a stay sought. "+ !ANHow does an application proceed? - application filed; - applicant almost always assigned pseudonyms or initials by the ADT or the IRC to ensure that he or she is not identifiable - application sent to the Commission, which commences the enquiries it sees as necessary to determine what submissions it will make to the ADT or IRC. "O /7B>Information from NSW government agencies - Attorney General s Department - NSW Police - Department of Community Services - DET - Otherwise - summonses "(x*uC - matter listed for directions hearing or case conference or perhaps stay hearing. - directions may be made for the filing of evidence, dealing with jurisdictional issues - Commission will often seek leave to cross-examine the applicant at this preliminary hearing. The purpose of the cross-examination is to elicit information from the applicant that will assist the Commission in conducting its enquiries and for the Commission to form a view as to the submissions it may make. 8D In some instances the Commission may seek to have the applicant undergo an assessment. A psychologist or psychiatrist who has expertise in the area of sex offending will conduct the assessment which will deal with the applicant s risk to children. The report will be furnished to the Tribunal to assist it in its deliberations. RREApplications direct to the Commission Since 2003, the Commission has had the power to make an order declaring that the Act is not to apply a person Only one application may be made at any time - s.9A states that a person may not make an application under s.8A or s.9 if the person already has another application pending under either of those sections. - test is still that the applicant does not pose a risk to the safety of children based on the same criteria as the ADT and IRC apply. "'F - can order a stay - can make an order subject to conditions, but, unlike the ADT or the IRC, it must obtain the applicant s consent in writing to any conditions that will be imposed. - if the applicant consents, the Commission can direct a government agency to provide information for the purposes of determining an application for an order. - applications are dealt with on the papers. G If the Commission considers that an applicant poses a risk to the safety of children or, for whatever reason, cannot make a decision as to whether the applicant poses such a risk, it will take no further action in relation to the application for a declaration. The applicant is to be advised in writing of the decision. An applicant may still apply to the ADT or the IRC if they do not obtain an order from the Commission. HExamples M AX GY"P d ` ` ̙33` 333MMM` ff3333f` f` f` 3>?" dd@,|?" dd@   " @ ` n?" dd@   @@``PR    @ ` ` p>>-K0 z (  $  0h?  "   RClick to edit Master text styles Second level Third level Fourth level Fifth level!     S2  s *D " T Crown Solicitor s Office New South Wales Z(* $   0X "  HCrown Copyright 2005 2    0c "3 Hwww.cso.nsw.gov.au(2 H  0޽h ? ̙33  CSO_Presentation 0 $*(  $ $ 0T  @9  T  X*  $ 0T  z 9 T  Z* d $ c $ ?Ay  T  $ 0T   ; T  RClick to edit Master text styles Second level Third level Fourth level Fifth level!     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"System-@Arial-. 2 b"New South Wales   .-@Arial-. %2 NCrown Copyright 2005   .-@Arial-. "2 Qwww.cso.nsw.gov.au  .-@Times New Roman-. =2 B$Teachers and the Law Conference 2005     .-@Times New Roman-. K2 c-Commission for Children and Young People and       .-@Times New Roman-. 42 4+applications under s.9 of the        .-@Times New Roman-. 32 4Child Prohibited (Prohibited       .-@Times New Roman-. '2 YEmployment) Act 1998 i   .-@Times New Roman-. 2 ( Anthea Tomline   .-@Times New Roman-. -2 Assistant Crown Solicitort        .-@Times New Roman-. +2 Crown Solicitors Office       .-՜.+,08    $ ;8On-screen ShowCrown Solicitor's OfficeX@:+{ /Times New RomanArial WingdingsCSO_PresentationTeachers and the Law Conference 2005 Commission for Children and Young People and applications under s.9 of the Child Prohibited (Prohibited Employment) Act 1998 Anthea Tomlin Assistant Crown Solicitor Crown Solicitors OfficeH What is the Commission for Children and Young People? - established by the Commission for Children and Young People Act 1998 and has been in existence for 5 years - an independent organisation that reports directly to the NSW Parliament - the Parliamentary Committee on Children and Young People oversees its work. . What does the Commission do? Its functions are: (a) to promote the participation of children in the making of decisions that affect their lives and to encourage government and non-government agencies to seek the participation of children appropriate to their age and maturity, (b) to promote and monitor the overall safety, welfare and well-being of children in the community and to monitor the trends in complaints made by or on behalf of children, " (c) to conduct special inquiries into issues affecting children, (d) to make recommendations to government and non-government agencies on legislation, policies, practices and services affecting children, (e) to promote the provision of information and advice to assist children, K (f) to conduct, promote and monitor training on issues affecting children, (g) to conduct, promote and monitor public awareness activities on issues affecting children, (h) to conduct, promote and monitor research into issues affecting children, (i) to participate in and monitor screening for child-related employment,  (j) to develop and administer a voluntary accreditation scheme for persons working with persons who have committed sexual offences against children, (k) to support and assist the Child Death Review Team in the exercise of its functions. (l) to be a party to proceedings brought under the Child Protection (Prohibited Employment) Act 1998 and make submissions in opposition to or support of the making of the order.  The Commission is governed by the following principles (a) the safety, welfare and well-being of children are the paramount considerations, (b) the views of children are to be given serious consideration and taken into account, (c) a co-operative relationship between children and their families, and between children and their community, is important for the safety, welfare and well-being of children. Origins of the Commission and the Child Protection (Prohibited Employment) Act 1998 - resulted from the Royal Commission into the NSW Police Service, which included inquiry into allegations about the protection of paedophiles by NSW police.  Recommendations of the Royal Commission A Commission with the capacity to oversee and co-ordinate the delivery of services for the protection of children from abuse (including sexual, physical and emotional abuse and neglect). [which] should have more than advisory role. Slide 107 Commissioner with the power to issue a certificate of unacceptable risk where the Commissioner considers that the involvement of any person in work or services involving having children in their care or under their supervision would expose a child or children to an unacceptable risk of sexual abuse  Result was the Child Protection (Prohibited Employment) Act 1998 Parliament created a legal presumption that persons convicted of serious sex offences pose a risk to the safety of children where they are employed, or seek to be employed, in child-related employment. Effect on employers 1. Must not commence employing or to continue to employ a prohibited person in child-related employment. Offence to do so with a maximum penalty being $11,000 for a corporation, and $5,500 in any other case. 2. Must not commence employing a person without requiring that person to disclose whether or not a prohibited person . Offence to do so with maximum penalty $22,000 for a corporation, and $11,000 in any other case. Slide 14Prohibited person 1. a person convicted of a serious sex offence; or 2. a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000.  Serious sex offence includes: - an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or - an offence, involving sexual activity or acts of indecency, that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in New South Wales, or Slide 17 - it also includes an offence: o an element of which is an intention to commit an offence referred to above in paragraph (a), (b) or (d), or o of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs. An offence that was a serious sex offence at the time of its commission is not a serious sex offence if the conduct constituting the offence has ceased to be an offence in New South Wales. An offence involving sexual activity or an act of indecency is not a serious sex offence if the conduct constituting the offence: (a) occurred in a public place, and (b) would not have constituted an offence in New South Wales if the place were not a public place. Slide 20 Slide 21 Slide 22Child-related employment Employment that primarily involves direct contact with children where that contact is not directly supervised in any of the following categories: (i) involving the provision of child protection services, (ii) in pre-schools, kindergartens and child care centres (including residential child care centres), (iii) in schools or other educational institutions (not being universities), in detention centres (within the meaning of the Children (Detention Centres) Act 1987), (v) in refuges used by children, (vi) in wards of public or private hospitals in which children are patients, (vii) in clubs, associations or movements (including of a cultural, recreational or sporting nature) having a significant child membership or involvement, (viii) in any religious organisation, u (ix) in entertainment venues where the clientele is primarily children, (x) as a babysitter or childminder that is arranged by a commercial agency, (xi) involving fostering or other child care, (xii) employment involving regular provision of taxi services for the transport of children with a disability, (xiii) employment involving the private tuition of children, Aemployment involving the direct provision of child health services, (xv) employment involving the provision of counselling or other support services for children, (xvi) employment on school buses, (xvii) employment at overnight camps for children, and (xviii) the performance of the duties of an authorised carer. 2includes: - performance of work under a contract of employment, - performance of work as a self-employed person, or as a subcontractor, - performance of work as a volunteer for an organisation, - undertaking practical training as part of an educational or vocational course, or - performance of work as a minister of religion or other member of a religious organisation. The requirement that the employment primarily involves direct contact with children, where that contact is not supervised, is satisfied if that direct contact is a primary or essential requirement of the job. The proportional amount of time that a person spends in the course of their employment having direct unsupervised contact with children is irrelevant to an assessment of whether a person is in child-related employment.Applications for an order declaring the Act does not apply - Any person who is a prohibited person can apply to the Administrative Decisions Tribunal. The person does not have to be in, or want to work in, child-related employment to be able to apply for an order. - A person must be an employee who is liable to be dismissed, or was dismissed from that employment under the Child Protection (Prohibited Employment) Act 1998 to be able to apply to the Industrial Relations Commission for an order. Effect of an order - an order relates to a specified offence or offences. - if a person, subsequent to an order being made, commits a further serious sex offence, he/she again becomes a prohibited person. "When can an order be made? Only if the IRC or the ADT considers that the person the subject of the proposed order does not pose a risk to the safety of children. The onus is on the applicant to show the ADT or the IRC that he or she does not pose a risk. - not a mere theoretical or possible risk arising from the fact of a previous conviction, but an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights risk to the safety of children is broader than the risk of sexual abuse safety relates not only to safety from sexual offences but safety from physical or emotional injury of any kind (X v Commissioner for Children and Young People [2001] NSWADT 130, 9 August 2001 (at [38])).RWhat is taken into account? (a) the seriousness of the offences with respect to which the person is a prohibited person, (a1) the period of time since those offences were committed, (b) the age of the person at the time those offences were committed, (c) the age of each victim of the offences at the time they were committed,  (d) the difference in age between the prohibited person and each such victim, (d1)the prohibited persons present age, (e) the seriousness of the prohibited persons total criminal record, (f) such other matters as the tribunal considers relevant. (a) he / she has a seriously arguable case; (b) at the requisite level the applicant does not pose a risk to the safety of children (at [22]). In this regard the Tribunal must have regard to the criteria set out in s.9(5) of the Act; (c) he / she will suffer detriment if the stay is not granted; and (d) the balancing of relevant considerations (including the question of the degree of the likelihood of success of the applicant in the substantive proceedings) favours the grant of a stay. Stay of operation of the Act Applicant will have to show that: (a) a seriously arguable case; (b) the applicant does not pose a risk to the safety of children (see the criteria set out in s.9(5)) (c) detriment if the stay is not granted; and (d) the balancing of relevant considerations (including the question of the degree of the likelihood of success of the applicant in the substantive proceedings) favours the grant of a stay. +Conditions - can be imposed on a stay or an order Examples: - applicant not engage in any child-related employment ... involving females between the ages of 12 and 18 years. - applicant not engage in any child-related employment other than the employment in respect of which a stay sought. OHow does an application proceed? - application filed; - applicant almost always assigned pseudonyms or initials by the ADT or the IRC to ensure that he or she is not identifiable - application sent to the Commission, which commences the enquiries it sees as necessary to determine what submissions it will make to the ADT or IRC. Information from NSW government agencies - Attorney Generals Department - NSW Police - Department of Community Services - DET - Otherwise - summonses  - matter listed for directions hearing or case conference or perhaps stay hearing. - directions may be made for the filing of evidence, dealing with jurisdictional issues - Commission will often seek leave to cross-examine the applicant at this preliminary hearing. The purpose of the cross-examination is to elicit information from the applicant that will assist the Commission in conducting its enquiries and for the Commission to form a view as to the submissions it may make. R In some instances the Commission may seek to have the applicant undergo an assessment. A psychologist or psychiatrist who has expertise in the area of sex offending will conduct the assessment which will deal with the applicants risk to children. The report will be furnished to the Tribunal to assist it in its deliberations. Applications direct to the Commission Since 2003, the Commission has had the power to make an order declaring that the Act is not to apply a person Only one application may be made at any time - s.9A states that a person may not make an application under s.8A or s.9 if the person already has another application pending under either of those sections. - test is still that the applicant does not pose a risk to the safety of children based on the same criteria as the ADT and IRC apply.  - can order a stay - can make an order subject to conditions, but, unlike the ADT or the IRC, it must obtain the applicants consent in writing to any conditions that will be imposed. - if the applicant consents, the Commission can direct a government agency to provide information for the purposes of determining an application for an order. - applications are dealt with on the papers.  If the Commission considers that an applicant poses a risk to the safety of children or, for whatever reason, cannot make a decision as to whether the applicant poses such a risk, it will take no further action in relation to the application for a declaration. The applicant is to be advised in writing of the decision. An applicant may still apply to the ADT or the IRC if they do not obtain an order from the Commission. Examples M AX GY  Fonts UsedDesign Template Slide Titles+_R dixondixon  !"#$%&'()*+,-./0123456789:;<=>?@ABCDEFGHIJKLMNOPQRSTUVWXYZ[\]^_`abcdefghiklmnopqstuvwxyz{|}~Root EntrydO)Current UserSummaryInformation(jPowerPoint Document(@DocumentSummaryInformation8r8