Industrial Relations Commission of New South Wales CITATION : "KK" and New South Wales Commission for Children and Young People [2003] NSWIRComm 184 APPLICANT: PARTIES : "KK" RESPONDENT: New South Wales Commission for Children and Young People FILE NUMBER: 1116 of 2003 CORAM: Sams DP CATCHWORDS : Application for order pursuant to s9 of the Child Protection (Prohibited Employment) Act 1998 - stay order sought and granted - Commission must be satisfied applicant poses no risk to the safety of children - conviction for indecent assault in 1984 - principles considered - Commission for Children and Young People did not oppose application - Industrial Relations Commission satisfied that the applicant does not pose a risk to the safety of children - order made without conditions declaring the Act does not apply to "KK" - orders attached. LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 "A" v Commission for Children and Young People [2003] NSWIRComm 81 "A" and Commission for Children and Young People No 2 (2000) 104 IR 119 CASES CITED : "G" v "J" and "H" [2001] NSWIRComm 69 "L" v Commission for Children and Young People [2001] NSWIRComm 134 "R" v NSW Commission for Children and Young People [2002] NSWIRComm 101 HEARING DATES: 05/30/2003 DATE OF JUDGMENT: 05/30/2003 APPLICANT Mr R Patane, Solicitor Macquarie Legal Centre Inc. LEGAL REPRESENTATIVES: RESPONDENT Mr R McIlwaine for Crown Solicitor JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 30 May 2003 Matter No IRC03/1116 "KK" AND NEW SOUTH WALES COMMISSION FOR CHILDREN AND YOUNG PEOPLE Application under section 9 of the Child Protection (Prohibited Employment) Act 1998 DECISION [2003] NSWIRComm 184 1 This is an application, made by "KK" ('the applicant') pursuant to s9 of the Child Protection (Prohibited Employment) Act 1998 ('the Act'). The applicant seeks an order that the Act does not apply to him in respect to his conviction for indecent assault in the Supreme Court of the Australian Capital Territory on 30 May 1984. 2 Section 9(1) of the Act empowers the Commission to make an order declaring that the Act is not to apply to a person in respect of a specified offence. Section 9(4) prevents the Commission from making such an order unless it is satisfied that the applicant does not pose a risk to the safety of children. 3 This latter question has been the subject of consideration in recent decisions of the Commission; "A" and Commission for Children and Young People No 2 (2000) 104 IR 119; "G" v "J" and "H" [2001] NSWIRComm 69; "R" v NSW Commission for Children and Young People [2002] NSWIRComm 101; "L" v NSW Commission for Children and Young People [2001] NSWIRComm 134 and "A" v Commission for Children and Young People [2003] NSWIRComm 81. I have considered these decisions and have applied their consistent reasoning to my conclusions in this matter. 4 In deciding whether or not to grant the application, it is necessary for the Commission, pursuant to s9(5) of the Act, to take account of the following: 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 person's present age, e) the seriousness of the prohibited person's total criminal record, f) such other matters as the tribunal considers relevant. 5 The application was listed for directions on 26 March 2003. The applicant appeared for himself and Mr R McIlwaine (Crown Solicitor's Office) appeared for the New South Wales Commission for Children and Young People ('the respondent'). 6 By consent the matter was adjourned to allow the respondent time to conduct further inquiries and for the applicant to seek legal representation. 7 On 16 April, Mr R Patane (Solicitor) now appeared for the applicant. Mr Patane sought a stay order pursuant to s9(6) of the Act. Mr McIlwaine consented to the stay order subject to certain conditions which were agreed to by Mr Patane; see Ex"1" tendered on that day. 8 The Commission granted the stay order and by consent adjourned the proceedings until 30 May 2003 to allow further inquiries to be made. 9 On 30 May 2003, Mr McIlwaine tendered a bundle of documents, (Ex"1") being the applicant's criminal record, details of the proceedings in the Supreme Court of the Australian Capital Territory in 1984, material produced by the Department of Community Services and Department of Education and Training, documents from the applicant's employer and from the Churches of Christ. 10 After referring to the documents in Ex"1", Mr McIlwaine submitted that the Commission for Children and Young People did not oppose the applicant's application under s9 of the Act. 11 Having considered the documents tendered in the proceedings and having regard to s9(4) and 9(5) of the Act, the Commission is satisfied that the applicant does not pose a risk to the safety of children. Accordingly, it is appropriate for me to make an order declaring that the Act does not apply to "KK" in these proceedings in respect of the offence of indecent assault for which he was convicted on 30 May 1984 by the Supreme Court of the Australian Capital Territory. I so order. 12 A copy of the orders are attached to this decision. Peter Sams Deputy President 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.