"A" v Commission for Children and Young People & Anor [2001] NSWIRComm 194

Industrial Relations Commission of New South Wales in Court Session

CITATION : "A" v Commission for Children and Young People & Anor [2001] NSWIRComm 194 APPLICANT "A"

PARTIES : FIRST RESPONDENT Commission for Children and Young People

SECOND RESPONDENT Director-General, Department of Education and Training FILE NUMBER: IRC 4540 of 2000 CORAM: Hungerford J Child Protection - Whether a person was a "prohibited person" so as to be excluded from child-related employment - Prior conviction for a "serious sex offence" - Operation of earlier legislation that conviction to be disregarded for all purposes whatsoever and of no legal force or effect - Crime-free period of more than 15 years since recognizance entered into - Whether later and earlier statutes inconsistent - General common law rules of statutory construction - No inconsistency found - Both statutes can stand together - "Conviction" in later statute to be construed as limited to one which is active or operative and with legal force and effect - Person found not to be a "prohibited person" - Entitled to engage in child-related employment - Declaration made to that effect.

CATCHWORDS : Practice and Procedure - Application for declaration of right - Question of statutory entitlement arising during proceedings before the Commission - Entitlement related to the matter pending before the Commission - Declaratory order only within jurisdiction of Commission in Court Session - Reconstitution of Commission as the Commission in Court Session to deal with application for declaratory relief.

Statutory Interpretation - Whether inconsistency between earlier and later enactments - General common law rules of construction - Retrospective operation of statute so as to affect accrued rights. Child Protection (Prohibited Employment) Act 1998 s 3 s 5 s 6(1) s 6(3) s 8(2) s 9(1) s 9(6) s 12(1) Commission for Children and Young People Act 1998 Crimes Act 1900 s 3 s 66C s 71 s 579 Pt 16 Sch 2 Crimes (Amendment) Act 1961 LEGISLATION CITED : Criminal Records Act 1991 s 7(1) Industrial Relations Act 1996 s 154(1) s 176(3) Interpretation Act 1987 s 30(1)(b) and (c) s 30(4)(b) s 34(1)(a) Interpretation Act of 1897 (repealed) s 8(b) Ombudsman Amendment (Child Protection and Community Services) Act 1998 Athlumney, Ex parte Wilson [1898] 2 QB 547 Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 Ford v SAS Trustee Corporation (2000) 98 IR 444 Glass Workers' Redundancy (State) Award, Re [1998] NSWIRComm 297 Hill v Hall (1876) 1 Ex D 411 CASES CITED : Kellogg (Aust) Pty Ltd v National Union of Workers, New South Wales Branch (1998) 89 IR 391 Mathieson v Burton (1971) 124 CLR 1 Maxwell v Murphy (1957) 96 CLR 261 R v Kidman (1915) 20 CLR 425 R v Sales (1989) 42 A Crim R 297 Royal Automobile Club of Australia, Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282 Saraswati v R (1991) 172 CLR 1 Shephard, Re Applications of [1983] 1 NSWLR 96 Totalizator Agency Board v TAB Agents' Association of New South Wales (1995) 36 NSWLR 594, (1995) 59 IR 36 HEARING DATES: 04/23/2001; 05/04/2001 DATE OF JUDGMENT: 08/28/2001