"R" v New South Wales Commission for Children and Young People. [2002] NSWIRComm 101

Industrial Relations Commission of New South Wales

CITATION : "R" v New South Wales Commission for Children and Young People. [2002] NSWIRComm 101 PARTIES : "R" v New South Wales Commission for Children and Young People. Application under s 9 of the Child Protection (Prohibited Employment) Act 1998 FILE NUMBER: IRC 5978 of 2001 CORAM: Haylen J Child Protection (Prohibited Employment) Act, 1998 - application for order under s 9(1) - scheme of Act - statutory construction - application for order under s 9(1) - whether two stage process requiring finding of no risk to safety of children as first step - whether conditions imposed under s 9(9) may be used in forming assessment of risk under s 9(4) - statutory construction - meaning of "risk" in s 9(4) - meaning of "primarily" in s 3(a) - use of extrinsic aids to construction - relevance of cognate legislation - whether statute creates a presumption of risk which may be rebutted by an applicant - nature of onus on applicant to make out a case for order to be made - role of Briginshaw test - application of s 140 Evidence Act - nature of discretion available under s 9(1) - whether order should be made where provisions of s 9(4) satisfied - legislation balances important rights - right to freedom from risk - right to work. CATCHWORDS : Child Protection (Prohibited Employment) Act 1998 - consideration of merits of application - relevance of minimisation of offence - whether character evidence relevant - relevance of psychiatric evidence in risk assessment - risk of re-offending different to statutory test of risk to safety of children - psychiatric evidence of low risk - age of student population under care and supervision of applicant - limited nature of contact with children - whether more restricted order warranted - applicant liable to lose employment as result of application of Act - applicant acknowledges wrongdoing - history of offence considered - extensive investigation by Childrens Commission - no other convictions - no offence or sexual offence for 10 years - s 9(4) satisfied - further submissions requested regarding terms of order to be made. Child Protection (Offenders Registration) Act 2000 s 16 Child Protection (Prohibited Employment) (No.3) Act 1998 Child Protection (Prohibited Employment) Act 1998 s 3 s 3(a) (vii) s 5(1) s 5(3) s 6 s 6(1) s 7 s 8(1) s 9 s 9(1) s 9(3) s 9(4) s 9(5) s 9(5)(f) s 9(6) s 9(7) s 9(9) s 10 s 37(6) (a)- (d) Commission for Children and Young People Act 1998 s 11 s 14A LEGISLATION CITED : s 33(1) s 34 s 37 s 37(6) Crimes Act 1900 s 61M(1) Evidence Act s 140 Interpretation Act 1987 (9)(1) Ombudsman Amendment (Child Protection and Community Services) Bill No 3