A and The Commission for Children and Young People (No 2)

Industrial Relations Commission of New South Wales CITATION : A and The Commission for Children and Young People (No 2) [2000] NSWIRComm 219 PARTIES : APPLICANT A RESPONDENT The Commission for Children and Young People FILE NUMBER: IRC 4490 of 2000 CORAM: Wright J President CATCHWORDS : Child protection - Application for stay of prohibition arising from operation of Child Protection (Prohibited Employment) Act 1998 - Principles to be applied - Statutory requirements to be satisfied - Terms of conditions to be imposed - Stay of prohibition granted subject to conditions LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 s 5 s 6 s 8 s 9 s 12 CASES CITED : Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148 Transport Indusatry (Courier & Taxi Truck) Contract Determination (Hungerford J, unreported, 21 December 1992) Water Industry Salaried Officers’ Union v Professional Officers’ Association (NSW) (1987) 22 IR 178 HEARING DATES: 09/21/2000; 09/26/2000; 09/27/2000 EXTEMPORE JUDGMENT DATE : 09/27/2000 LEGAL REPRESENTATIVES: APPLICANT Mr D M Flaherty of Counsel Solicitor: Mr John Boyd Cameron Gillingham Boyd RESPONDENT Mr I D Bourke of Counsel Solicitor: Mr I V Knight, Crown Solicitor (Ms L Plater and Ms M Barbaro) INTERVENOR Mr T Molomby of Counsel Solicitor: Ms N M de Haas Catholic Commission for Employment Relations JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WRIGHT J, President Wednesday 27 September 2000 Matter No IRC 4490 of 2000 A AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE Application pursuant to s 9 of the Child Protection (Prohibited Employment) Act 1998. DECISION (extempore) 1 These proceedings involve an application for an order under s 9 of the Child Protection (Prohibited Employment) Act 1998 (the Act) and the proceedings today relate to an interlocutory application made in the proceedings for a stay of the operation of the prohibition under the Act in relation the applicant pending the final determination of the matter. The interlocutory application is made pursuant to s 9(6) of the Act. Notwithstanding the importance and difficulties of the present application for reasons which will be referred to subsequently there is no alternative but to give an extempore decision in this matter today. 2 The order sought by the applicant in the substantive proceedings is a declaration that the Child Protection (Prohibited Employment) Act 1998 does not apply to the applicant in respect of the six specified offences. The grounds and reasons in support of the application refer to the factual background to the convictions and the applicant’s employment history. It is asserted that the applicant does not pose a risk to the safety of children, he has no other criminal convictions and has been employed as a teacher at all boys schools for a considerable period. Finally, that his application has the support of previous and present school principals. 3 In support of his application as filed, the applicant relies on his own affidavit sworn on 6 September 2000 and also affidavits of three senior teachers who are or were principals of schools at which he has taught or is now teaching. In order to understand the relevance of those affidavits it is necessary to set out briefly the circumstances of the convictions which have led to the present application. Factual background 4 In 1988 the applicant was a teacher at a high school in a country area of the State. He formed a relationship with a 15 year old schoolgirl who was a student at the school. That relationship developed into a sexual relationship and the applicant was charged with six counts of having sexual intercourse with a person being above the age of ten years and under the age of 16 years, the said person then being under the authority of the applicant. He pleaded guilty to the six charges laid against him in December 1988 and he subsequently came before a judge of the District Court for sentence. 5 In a detailed judgment his Honour dealt with the applicant and his pleas of guilty and on the first five counts he sentenced him to 18 months imprisonment with hard labour. Those sentences were ordered to be served concurrently by way of periodic detention. On the sixth count the sentence was deferred. The applicant was ordered to be bound over on a reconnaissance in the sum of $1,000 to be of good behaviour during the period of five years from the date of sentence and to appear to receive sentence if called upon to do so at any time in respect of any breach within the period of five years. The applicant was also ordered to accept supervision of the Probation and Parole Service but that Service was authorised to release the applicant from that obligation at any time during the currency of the supervision at the Service’s discretion. 6 His Honour made the following observations in concluding the judgment on sentence: Those orders effect a custodial disposition of the matter coupled with a lengthy period of supervision and constraint. I believe the sentencing orders achieve a proper balance between my prime concern which is the community interest and the interests of the prisoner. 7 Prior to those convictions the employment history of the applicant included his undertaking a Bachelor’s degree and relevant diploma and completing those qualifications. He then taught in the State school system until 1988 being promoted in 1986 to head a department at the school where the offences occurred. He accepts that he had “an inappropriate relationship with a 15 year old girl”, who was his student, between March and August of the relevant year. He was charged with the offences and as a result of the charges and the sentences imposed he was dismissed from the New South Wales Department of Education. He then worked in a number of non-teaching positions. In approximately April 1989 he applied for a position as a teacher at a private school. During the course of the interview process for that position he advised the principal of the school of the offences and deposes that notwithstanding this disclosure he was offered a position with the school and commenced employment there in 1989. 8 He remained at that school until 1997 when his employment was terminated. This occurred as a result of the employer receiving information from the Police Child Protection Enforcement Agency regarding his previous charges and convictions. Between August 1997 and January 1998 he was employed as an administrative assistant in the private sector. In 1997 he saw an advertisement for the position he currently holds at another private school. Again, during the interview process he informed the school principal of the offences with which he had been convicted and also the other matters earlier referred to. He was subsequently offered a position with that school and commenced employment in 1998. Both of the schools where the applicant has been employed are boys only schools. The applicant indicated in his application that he is prepared to have as a condition of any declaration made under s 9 a condition that he “continue teaching in only all boys school environments”. 9 The affidavits filed with the application which the applicant relies upon are from three senior teachers in private schools. The first deponent is the principal of the school where he is currently employed. In relevant respects he confirms and corroborates the evidence of the applicant. He speaks highly of his skills as a teacher and his devotion to his work including his significant extra-curricular responsibilities in relation to sport and in undertaking extra work to assist his students in other activities. He deposes that the applicant “is also very generous in terms of the time he makes available to other members of the teaching staff. As far as I am aware he is well regarded by his peers”. 10 He also refers to his knowledge in broad terms of the provisions of the relevant statute, that he had discussed the implementation of the legislation with the applicant, and had actively encouraged him to seek advice in relation to the then proposed legislation as he was very keen to retain the applicant as a member of the school’s teaching staff. He also deposes that he is completely confident that the applicant does not pose any risk whatsoever to the safety of the children at the school and that he would be equally confident that the applicant would not pose a risk to the safety of any male children who may come under his control. 11 The other deponents are both current principals of private schools and each was the principal of the school where the applicant taught prior to his present employment. One was the principal when the applicant commenced working there and until the end of 1989. The other deponent was the principal between 1990 and 1994. The latter deponent refers to his having promoted the applicant to the position of sportsmaster of the school. These deponents give evidence of similar effect to that of the applicant’s present principal. Deponents from both of the schools at the time he commenced employment indicate the applicant was clearly the best applicant for the position in terms of professional skills and qualifications. The Child Protection (Prohibited Employment) Act 1998 12 The provisions under which the applicant brings the present application, and under which he seeks the current interlocutory stay order, are to be found in s 9 of the Act. It is convenient to set out the terms of that section: 9 IRC and ADT may make declarations concerning prohibited persons (1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence. (2) A relevant tribunal is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. (3) The Industrial Relations Commission may not make an order under this section unless: (a) the person is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from that employment under this Act; (b) the person was such an employee who was dismissed from that employment under this Act. (4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. (5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following: (a) the seriousness of the offences with respect to which the person is a prohibited person; (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; (e) the seriousness of the prohibited person's total criminal record; (f) such other matters as the tribunal considers relevant. (6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter. (7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order. (8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal. (9) Orders under this section may be made subject to conditions. (10) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order. (11) The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs. (b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings. Part 4 Miscellaneous. 13 Before referring to the terms and relevant parts of that provision in some short detail, it is relevant to refer to the scheme of the Act. The Act was passed in 1998 and assented to on 8 December that year. It came into force on 3 July 2000. It relates to “child-related employment” as defined in s 3 of the Act, which for present purposes includes “employment in schools and other educational institutions (not being universities)”. Although there are definitions of “employer” and “employment” it is sufficient to note that they include employment under a contract of employment in the usual sense. 14 The long title of the Act is in the following terms: An Act to prohibit the employment in child-related employment of persons found guilty of committing certain serious sex offences; and for related purposes. The provision under which the present application is made is a provision which falls within the description “for related purposes” in terms of the long title. 15 Section 5 is entitled “Prohibited persons” and defines a “prohibited person” as a person convicted of a serious sex offence, whether before or after the commencement of the provision. Section 5 also includes an extensive definition, or series of definitions, of the phrase “serious sex offence” and for present purposes includes the following: 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 … 16 Section 6 creates, in subsection (1) thereof, a number of offences. It provides: 6 Offences relating to prohibited persons (1) Offence of applying for, undertaking or remaining in child-related employment A prohibited person must not: (a) apply for child-related employment, or (b) undertake child-related employment, or (c) remain in child-related employment. Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both. 17 Sections 6 and 7 contain certain transitional provisions as to employers and employees in child-related employment. It is not necessary to refer to those provisions further, subject to one exception, because the applicant has made the present application. Section 8 makes it an offence for an employer to commence employing, or to continue to employ a person in child-related employment whom the employer knows is a prohibited person. That section also contains certain transitional provisions. The effect of the transitional provisions is that the Act having commenced on 3 July this year the applicant cannot continue in his current employment beyond 2 October 2000 unless an order or stay is granted under s 9 prior to that date. Parenthetically, it is to be observed that the practical effect of this situation is that the stay application must be decided now. 18 Section 12 deals with the relationship between the Act and other Acts and laws and, again, because of its importance it should be set out. It is in the following terms: 12 Relationship with other Acts and laws (1) This Act prevails to the extent of any inconsistency between it and any other Act or law. (2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or employee contrary to a prohibition on employment imposed by this act, or to order the payment of damages or compensation for any removal from employment in accordance with this Act. Principles to be applied 19 It is now proposed to discuss the relevant principles which it is considered should be applied in determining the present interlocutory application. These principles may be considered in two ways. First, the relevant statutory provisions or criteria which must be applied in considering whether to grant the application. Secondly, the more general considerations which are to be applied in considering the application. Inevitably, the principles in these two areas overlap and are not to be considered as entirely separate one from the other. 20 Clearly, the relevant parts of s 9 of the Act provide the essential criteria to be considered. The first matter that requires consideration is the prohibition on the Commission in s 9(3) from making an order unless the applicant is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from employment under the Child Protection (Prohibited Employment) Act 1998, or was such an employee who was dismissed from employment. The evidence demonstrates that the applicant is an employee within the meaning of the Industrial Relations Act who is liable to be dismissed from employment because of the provisions of the Act. 21 The next question to be considered is whether the particular provisions in subsections (4) and (5) of s 9 are to be applied in the present proceedings. A preliminary consideration of the whole of s 9 appears to indicate that a distinction is drawn by the section between “an order” for substantive or final relief pursuant to subsection 9(1) and a “stay [of] the operation of a prohibition under [the] Act pending the determination of the matter” under s 9(6). If that be the correct construction of s 9, then the criteria specified in s 9(4) and s 9(5) do not apply to the present interlocutory application. I do not consider that that is the correct construction of the provision. In my view, the reference in these subsections to “an order” is intended, when s 9 is read as a whole and considered in the context of the Act as a whole, to refer to any order made under s 9 whether it be a final order or an interlocutory stay granted under s 9(6). Although this may not be the strictly literal construction of the provision, it would be a nonsense to construe the term “order” in any other way. It would, for example, mean that the Commission was not obliged to take into account the criteria specified in s 9(5) in considering a stay application. Further, it would lead to the absurd result that a stay under s 9(6) could not be made subject to conditions because s 9(9) would result in the situation where only final or substantive orders could be made subject to conditions. 22 Accordingly, in determining whether to grant a stay of the operation of the prohibition under the Act pursuant to s 9(6) the Commission is obliged to take into account the specific criteria set out in s 9(5). Further, and also very importantly, in making such a determination, the Commission is obliged to comply with the mandate in s 9(4). That is, not to make an order unless it considers that the applicant does not pose a risk to the safety of children. Certainly, a determination of that issue at the level required for the purposes of interlocutory relief must be made at this stage. 23 Returning then to the criteria set out in s 9(5) it is clear that the relevant offences were offences of the utmost gravity and the gravity of the offences is emphasised when there is regard to the age of the applicant at the time the offences were committed, the age of the victim of the offences and the difference in the ages of the applicant and the victim at that time. It is also relevant that the applicant’s criminal record is one therefore of significant gravity. It is also relevant, however, to have regard to the criminal history of the applicant otherwise than in relation to the specific offences, the fact that there is an absence of any other criminal conviction, and also in that context to have regard to the opinions expressed by the three experienced educators who have given evidence on his behalf. 24 Referring then to the more general considerations or principles which should be considered, the first question is whether the tests and approach traditionally utilised by the Commission in relation to stays (for example, in relation to appeals) should be applied. Those criteria are spelt out in a number of leading authorities and are now well settled. See, for example, the judgment of a Full Bench of the former Industrial Commission in Water Industry Salaried Officers’ Union v Professional Officers’ Association (NSW) (1987) 22 IR 178 in which the relevant principles were discussed by reference to the judgment of the Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685. See also the judgment of Hungerford J in Transport Industry (Courier & Taxi Truck) Contract Determination (unreported, 21 December 1992). 25 The principles extracted from those cases may be summarised relevantly as follows. In order for a stay to be granted it is not necessary that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour. Further, but subject to the power of the Commission to make orders protecting the respective positions of the parties, the grant of the stay is often designed to ensure, so far as is possible, that there is no unfair disadvantage to either party and also to ensure that the status quo, to the extent appropriate, is reasonably preserved as between the parties. 26 It is not considered that the approach extracted in those cases, although no doubt appropriate to the area in which the principles were fashioned, is relevant or appropriate in the present case or in other cases where a stay is sought under s 9(6) of the Act. Rather, but subject to some important modifications, the principles applicable to the grant of an interlocutory injunction are more likely to provide a surer guide to the approach that should be adopted. A useful distillation of relevant authority is to be found in the judgment of Mason ACJ, as his Honour then was, in Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148 at 153. His Honour held: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction ... that there is “a serious question to be tried” … is the correct test to be applied at least in the majority of cases … His Honour also held at 154: However, it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. The degree of likelihood of success in the action is a factor that is related to the balance of convenience in a way shortly to be mentioned. 27 The approach so distilled provides a useful analogy that should be adopted in this matter provided it is clear that the applicant must show more than a serious question to be tried and whether that is described in terms of a prima facie case or something more does not require final determination. 28 It is sufficient to note that this application has been approached on the basis that, although it may not be necessary that the applicant show a distinct probability of success, the applicant should demonstrate a seriously arguable case and must, at least at the interlocutory stage, demonstrate that the criterion in s 9(4) has been satisfied. That is, at the requisite level, in terms of the evidence as it stands, the applicant must show that he does not pose a risk to the safety of children. Again, as considered by Mason ACJ, the question of the degree of likelihood of success of the applicant in the substantive proceedings is a factor which will often also be relevant to the question of the balance of convenience. In summary, the applicant must show not only a seriously arguable case but also that he or she will suffer detriment if the stay is not granted and, also that the balancing of relevant considerations favours the grant of the stay. 29 One final observation should be made as to s 9(4). It is clear from both its terms and evident purpose that the test imposes an obligation to consider whether it is satisfied at the time the Commission is considering the application. Although past conduct may be relevant it is only relevant to the extent that it may assist that determination. Regard must also be paid to possible future conduct. There is another factor which must be considered if regard is had by way of analogy to the principles as to the grant of interlocutory injunctions. In that area an important consideration is the preservation to the extent feasible and appropriate of the status quo. In this area there is either no status quo in a relevant sense or the status quo is the fact of the statutory prohibition imposed on the applicant. 30 In considering the application and scope of the statute the precise factual circumstances which will exist in all or the vast majority of cases must be considered. They include the fact that the applicant will have been convicted of one or more serious criminal offences and that he or she will have served any relevant sentence. The applicant will most likely have had no further convictions and not be the subject of further adverse notifications to the authorities. Accordingly, the fact alone of absence of further convictions and absence of further adverse notification to the authorities are not matters of themselves which will necessarily, or be likely to, lead to a grant of an order under s 9. 31 Such considerations serve to show the broad public interest the legislation is intended to serve. It is not a statute intended to impose an additional punishment on a person guilty of a criminal offence of a sexual nature. Rather it is intended to provide a means to identify such offenders to the relevant authorities and, where relevant, their employers, and to eliminate to the greatest extent possible the risks that such persons might pose to children particularly from any institutional contact or relationship they might have with them. These considerations serve to emphasise the importance of the public interest considerations embodied in the terms and purposes of the legislation and the stringency of the approach to be taken by the Commission prior to making an order whether final or interlocutory. 32 Having set out what I consider to be the relevant principles I now turn to consider the factual matters which have been placed before the Commission and to relate those to the matters which require consideration in deciding whether or not to grant the interlocutory application now made. Approach of the Commission for Children and Young People 33 Counsel for the Commission for Children and Young People, the body which is required by s 9(7) of the Act to be a party to any proceedings under s 9, advised the Commission that his client opposed the granting of the application for a stay and, in the alternative, that should the Commission, contrary to those submissions, grant a stay, it should only do so on appropriately stringent terms which were formulated by him. 34 During the course of the hearing a number of rulings were made as to the evidence which was to be admitted in relation to the interlocutory proceedings. The major ruling was the subject of considerable debate and in respect of which a detailed ruling was given and which appears in transcript. It is not necessary to repeat it here. However, an objection on behalf of the applicant to the tender of certain material relating to the time when the applicant was a teacher at a school in suburban Sydney, was overruled. That material was allowed to be tendered, notwithstanding some doubt as to its relevance and weight as to the primary issues set out in s 9(4) and s 9(5) of the Act, as it was considered that such material may potentially shed some light on the possibility that the applicant may at present pose some danger or risk to the safety of children and that the Commission should take a cautionary approach as to that issue. Consideration and conclusions 35 The principal of the school where the applicant is presently employed gave further evidence in the proceedings by affidavit sworn on 25 September 2000. In that affidavit the deponent sets out the steps he took in relation to his knowledge of the convictions of the applicant both at the time of his employment and also when the Act was the subject of consideration and discussion at the school. For example, he indicates that he discussed such matters with the School Executive, although he apparently did not inform the School Counsellor of such matters. He also indicates that he was not aware of the incidents which were alleged to have occurred involving the applicant in the mid 1980s until the present proceedings although he also gives evidence of having now taken such matters into consideration. He has adhered to the view he expressed in his first affidavit that he considers that the applicant does not pose a risk to children. 36 He also refers in his affidavit to a number of possible conditions which have been formulated by the applicant in conjunction with his legal advisers and which might be attached to any stay granted. He indicates that such matters are matters which can be appropriately adhered to by the school should they be made conditions for the grant of the stay. 37 As indicated earlier, the respondent, on the other hand, although contending that the application for a stay should not be granted, submits in the alternative that should the stay be granted, it be granted on conditions of the utmost stringency. Reference will be made to those matters shortly. In addition to those matters, the Commission raised with counsel for the parties and the intervener a further possible condition that might be imposed should the application for a stay be granted. It was raised in terms of a requirement that the applicant consult a suitably qualified counsellor, to be chosen by him in consultation with his legal advisers. It would be entirely a matter for the applicant and his advisers whether the person in question was a member of any particular profession. The only specific condition in that regard would be that the person be suitably qualified and recognised in the field of counselling. 38 In coming to its conclusion in this matter the Commission has had regard to all of the evidence before it on the basis that much of it has not been tested in a way that would have been appropriate in an application for final relief. Regard has also been paid to the fact that a course unusual in applications for interlocutory relief was taken and cross-examination of the applicant was permitted. It was considered that may be an appropriate course in applications of this kind although such matters would always be within the discretion of the member of the Commission dealing with the particular application. As indicated earlier regard has been had to the various considerations which must be considered under subsection (5) of s 9 and the crucial consideration set out in subsection (4) of that section. The submissions made by all counsel that in considering the test under that subsection and certainly at the interlocutory stage, it was appropriate in determining whether the test had been met to take into account any conditions that were to be imposed at the interlocutory stage, have been accepted. 39 On that basis the Commission has reached the conclusion that the test in s 9(4) has been satisfied. In reaching that conclusion all of the matters earlier referred to in relation to the criteria set out in subsection (5) and the significant concerns and seriousness of the offences in relation to those matters have been considered. 40 In addition, regard has been paid to the exemplary record of the applicant since those convictions were recorded and the fact that he has not come under any form of adverse notice since that time and also the high level of support he has received from the three principals whose affidavits were tendered and who have spoken of his professional commitment and standing and regard amongst his colleagues. Particular regard has been had to the evidence of his current principal and his considered views that the applicant does not pose a risk to the safety of children. 41 It is, however, of concern that there was no reference in the material filed by the applicant as to the allegations concerning him in the mid 1980s and but for the quality of the evidence in his favour including that most recently filed on behalf of the school, that omission may have led to a negative finding as to the s 9(4) criteria. 42 The Commission is entitled in this case to consider as most significant and weighty the evidence filed by the school as to the issue raised by s 9(4) and also to the support of the school and its principal for the grant of the interlocutory application. The applicant was observed closely when he gave evidence and although the submissions of the respondent that it is inappropriate to make any express or final finding on his credit were accepted, there was nothing observed in his evidence or in the way he gave that evidence inconsistent with the finding that has been made at the interlocutory stage under s 9(4). 43 The conditions that are to be imposed should be approached on an appropriately cautionary basis. This approach arises from the nature of the interlocutory proceedings and the fact that such conditions are designed to put beyond any reasonable doubt that the applicant does not pose a risk in a relevant sense to the safety of children. The condition raised by the Commission may appear to be, even on that approach, unduly cautionary in nature. Nevertheless, as the respondent has submitted, the offences in question occurred over a period of some months and were extraordinarily serious in nature and involve a most significant breach of trust and an abuse of the position held by the applicant. That description is relevant not only to the events for which the applicant was convicted but also for those which were alleged to have occurred some years earlier. All of those matters are to be balanced against the other matters which have been relied upon by the applicant and to which reference has been earlier made. The additional condition is considered appropriate in the light of the matters relied upon by the respondent and notwithstanding the findings made otherwise as to the criteria raised by s 9(4). 44 Concluding by returning to the tests or approach earlier referred to adapted from the principles for the grant of interlocutory relief, the evidence as it stands results in the applicant having shown that he does not pose a risk for the safety of children and that it is appropriate on the precautionary basis earlier referred to impose relevant conditions. The applicant has also shown in relation to the issue for determination a seriously arguable case as to that issue. The evidence shows that the applicant will suffer detriment if the stay is not granted and that a balancing of relevant considerations favours the grant of the stay. For example, in relation to the last mentioned matter, a great deal of reliance was placed by both counsel for the applicant and counsel for the school upon the situation of students being taught by the applicant, particularly those in the final two years of schooling, and the adverse affect on their education for the balance of this year should, in the light of the positive evidence given in relation to him on behalf of the school, he not be able to continue teaching for the balance of this year. 45 As earlier indicated, the fact of absence of further convictions since the relevant convictions which have led to the prohibition or no adverse notice since then, does not of itself lead to a grant of an order. There must be a case positive and substantial otherwise to warrant the grant of an order or orders even of an interlocutory nature. 46 Having regard to the various submissions made as to the different conditions proposed by the parties and having made clear that a very cautionary approach has been taken it is not considered appropriate to impose conditions which may not be clear and thus difficult to comply with. Therefore, at least in one respect, one of the conditions raised by the respondent has not been adopted for that reason and there was also another condition which did not, on the evidence before the Commission, require insertion even on a cautionary basis. Orders 47 I am minded after pronouncing the orders to raise with the parties the possibility of granting liberty to apply as to the form of those orders but, I hasten to add, I am not inviting, if I do that, any rehearsing of matters that I have already dealt with and which have already been raised with the Commission. Subject to the possibility of liberty to apply the Commission makes the following orders: 1. Until further order the Commission orders that the prohibition under the Act is stayed in respect of the applicant and does not apply to him as to the six convictions for which he was sentenced in 1989 subject to the following conditions: (i) the stay remains in force only while the applicant is employed in his current employment; (ii) during the course of that employment the applicant shall not have unsupervised face to face contact alone with females under the age of eighteen years; (iii) the applicant shall consult a suitably qualified counsellor to be chosen by him in consultation with his legal advisers. The only specific condition in that regard is that the person be suitably qualified and recognised in the field of counselling; (iv) the applicant’s employer and its principal gives the following undertakings to the Commission and it is noted in this regard that they have indicated through counsel their preparedness to give such undertakings: (a) the school executive and the school counsellor shall be provided with a copy of this order within seven days; (b) the employer and its principal shall advise the respondent forthwith of any breach of this order or condition of this order. 2. The Industrial Registrar is directed to serve a sealed copy of these orders on the Commissioner of Police as required by s 9 of the Child Protection (Prohibited Employment) Act 1998. ______________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.