Industrial Relations Commission of New South Wales CITATION: Heath Services Union on behalf of "B" v Commission for Children and Young People and Another [2005] NSWIRComm 461 APPLICANT Health Services Union on behalf of "B" PARTIES: RESPONDENT Commission for Children and Young People and Another FILE NUMBER(S): IRC 4964 of 2005 CORAM: Harrison DP CATCHWORDS: Application for declaration that applicant not prohibited person under Child Protection (Prohibited Employment) Act 1998 - Application not opposed - Application granted LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998 HEARING DATES: 10/20/2005; 12/09/2005 DATE OF JUDGMENT: 12/12/2005 APPLICANT Mr A Coquillon HSU LEGAL REPRESENTATIVES: RESPONDENTS Mr G De Courcey Mr P Reay JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP 12 December 2005 Matter No IRC 4964 of 2005 Health Services on behalf of "B" and the Commission for Children and Young People and Another Application under section 9 of the Child Protection (Prohibited Employment) Act 1998 ORDER [2005] NSWIRComm 461 1 The application in this matter was filed by the Health Services Union (HSU) on behalf of its member, "B", who has been employed as a wardsman at a particular hospital since 1993. The offence which gives rise to "B" being declared a "prohibited person" pursuant to s 9 of the Child Protection (Prohibited Employment" Act 1998 ("the Child Protection Act") occurred in 1975 when "B" was 13 years of age. The offence is specified as "One count of assault and Indecent Act on a Female". 2 The application was first subject to proceedings on 20 October 2005. Mr Coquillon of the HSU, appearing on behalf of "B" made application for a suppression order on "B's" name, place of employment, and the name of the employer. Mr Coquillon submitted that "B" continued in employment with the employer in a temporary role which provided no access to children. 3 Mr Coquillon sought the matter be adjourned for a month during which time "B" would undergo a psychological assessment. 4 Mr De Courcey, appearing on behalf of the Commission for Children and Young People (CCYP) and Mr Reay, appearing on behalf of the employer, did not oppose the application for suppression order, or the request for adjournment pending the outcome of clinical assessment. Mr Reay confirmed that "B" continued in employment in an alternate position, and could continue in that position until the matter was finalised. 5 Suppression orders were issued in transcript and the matter adjourned to 9 December 2005. 6 On 9 December 2005 Mr Coquillon continued his appearance with and on behalf of "B". 7 Mr De Courcy and Mr Reay maintained their respective appearances. 8 Mr Coquillon sought an order pursuant to s 9 of the Child Protection Act. 9 The Commission was provided with an affidavit of "B" (exhibit 1) to which is attached the determination of a Special Magistrate constituting a Children's Court setting out the details of the charge and the determination of the Magistrate; and an affidavit of Mr P Reay (exhibit 2) providing details of "B's" employment and supporting the application. 10 Neither "B" nor Mr Reay were required for cross examination. 11 Mr De Courcy tendered a psychological assessment prepared by Dr Christopher J Lennings (exhibit 3) of the School of Behavioural and Community Health Sciences, Faculty of Health Science, University of Sydney which concludes that "B" presents as a well adjusted man without significant risk to children. 12 The application for an order pursuant to s 9 of the Child Protection Act was not opposed. 13 Having considered all of the relevant criteria required by s 9(5) of the Child Protection Act, I am satisfied that Mr "B" does not pose a risk to the safety of children and accordingly an order declaring that the Child Protection Act does not apply to him in respect to the offence committed in December 1975 is made. 14 The order issues herewith. Publication of the identities of the applicant and employer are suppressed and are to remain confidential. 15 The Registrar is directed to advise the Commission 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. 16 Matter No IRC 4964 of 2005 is so concluded. 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.