Industrial Relations Commission of New South Wales CITATION : "B" v The Commission for Children and Young People [2004] NSWIRComm 63 APPLICANT PARTIES : "Mr B" RESPONDENT The Commission for Children and Young People FILE NUMBER: IRC 7172 of 2003 CORAM: Harrison DP CATCHWORDS : Application under s9 of the Child Protection (Prohibited Employment) Act 1998 - Joint application for stay pursuant to s9(6) of Child Protection Act - Conditions agreed - Conditional stay order supported by evidence and psychological opinion - Suppression of identity of applicant and employer - Proceedings stood over for 12 months - Relist on application of either party. LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Crimes Act 1900 HEARING DATES: 02/05/2004; 03/11/2004 EXTEMPORE JUDGMENT DATE : 03/22/2004 APPLICANT Counsel Mr N Dawson LEGAL REPRESENTATIVES: RESPONDENT Counsel Ms A Healey Solicitor Ms K Vaisman for Crown Solicitor JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP 22 March 2004 Matter No IRC 7172 of 2003 "B" AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE Application under s9 of the Child Protection (Prohibited Employment) Act 1998 INTERIM ORDER [2004]NSWIRComm 63 1 In November 2002 the applicant was convicted of inciting a person under the age of 16 years to commit an act of indecency contrary s 61N of the Crimes Act 1900. On conviction the applicant became a prohibited person pursuant to the Child Protection (Prohibited Employment) Act 1998 ('the Child Protection Act') and makes the present application for an order of exemption pursuant to s 9 of the Child Protection Act. 2 On hearing evidence was received from the applicant, his immediate supervisor, and two psychologists, Dr Siedler and Dr Roland. 3 On conclusion of the evidentiary phase of proceedings the parties made joint application for an interim order in the following terms (exhibit 10): 1. The operation of a prohibition order under the Child Protection (Prohibited Employment) Act 1998 in relation to the sexual offence for which the applicant was convicted, is stayed pending the determination of this matter at a date to be fixed by the Registrar, but not before mid-March 2005. 2. This order is granted subject to the following conditions: (A) That the applicant not undertake or apply for any other form of child-related employment apart from employment in his current position with the Northern Rivers Area Health Service. (B) That the applicant undertake to employ the following risk management strategies wherever possible in his employment with the Northern Rivers Area Health Service: (i) using female nursing staff to complete any invasive or other sensitive procedures with female patients under the age of 18; (ii) encouraging female patients under the age of 18 to take a more active role in their own assessments, such as allowing them to feel for sites of pain, etc.; (iii) not engaging in any assessment of female patients under the age of 18 that requires them to remove clothing; (iv) not to be isolated with female patients under the age of 18 within the work environment. (C) That during the period of this stay the applicant undergo counselling with a suitably qualified professional; (D) That the applicant file and serve a report from his treating counsellor within one month of his application returning to the Industrial Relations Commission; (E) That a copy of this order be served upon the applicant, employer, the General Manager, Northern Rivers Area Health Service, Lismore Office, Locked Bag 11, Lismore NSW 2480. (F) That a copy of this order be served on the Commissioner of Police; (G) That the parties have liberty to apply to relist the matter within 14 days notice. 4 An Ex Tempore Decision granting the interim order pursuant to s 9(6) of the Child Protection Act was made on 11 March 2004. The reasons upon which this order is made are set out below. 5 I am satisfied that the circumstances of the present matter justify the issue of the order sought having regard to those matters required to be considered pursuant to s 9(5) of the Child Protection Act. 6 The evidence discloses that the applicant was not aware at the time of the events that the victim was under 16 years of age, there was no physical contact between the parties at the time of the offence. 7 The applicant ceased incitement when he became aware of the victim's reluctance and distress. The event took place at a time of unusual personal stress in the applicant's life. The applicant has displayed genuine remorse and contrition. Both psychologists' reports conclude that the applicant is not a risk to children, though requires some assistance to deal with other personal issues and accordingly propose the conditions in the orders above. There is no criminal record prior to these events. 8 The applicant has the unequivocal support of his family and his employer in the pursuit of his career and dealing with the unresolved issues in accordance with the conditions of the order. The parties were in agreement that the identity of the applicant and employer should remain confidential. 9 Orders are made pursuant to s 9(6) of the Child Protection Act in the terms of the joint application. Publication of the identity of the applicant and the employer is suppressed and are to remain confidential. 10 The Registrar is directed to advise the Commissioner of Police in writing of the terms of these orders and also to include in that document the name of the person the subject of the orders. 11 These proceedings are stood over in accordance with the orders made with leave to either party to seek relist on 14 days notice. oo0oo 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.