Industrial Relations Commission of New South Wales CITATION: 'S' v The Commission for Children and Young People [2007] NSWIRComm 30 This decision has been amended. Please see the end of the judgment for a list of the amendments. PARTIES: 'S' The Commission for Children and Young People FILE NUMBER(S): IRC 3533 of 2006 CORAM: Grayson DP CATCHWORDS: Child Protection (Prohibited Employment) Act 1998 - Application for order declaring statute not to apply to applicant in respect of specified offence - Application not opposed - Onus on applicant to satisfy tribunal to appropriate standard - Onus discharged - Held, applicant does not pose a risk to safety of children - Application granted - Registrar directed to notify Commissioner of Police of terms of order. LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998 Briginshaw v Briginshaw 60 CLR 336 CASES CITED: Commission for Children and Young People v "A" [2003] NSWIRComm 6 Commission for Children and Young People v "S" [2003] NSWIRComm 205 Commission for Children and Young People v "V" [2002] NSWSC 949 HEARING DATES: 15 February 2007 EXTEMPORE JUDGMENT DATE: 15 February 2007 Ms L Whalan of counsel instructed by Mr T Morgenstern, solicitor LEGAL REPRESENTATIVES: Mr I Bourke of counsel instructed by Commission for Children and Young People JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Grayson DP 15 February 2007 Matter No IRC 3533 of 2006 "S" v The Commission for Children and Young People Application under s 9 of the Child Protection (Prohibited Employment) Act 1998 Ex tempore Decision [2007] NSWIRComm 30 1 The applicant in the proceedings, Mr S, seeks a declaration under the Child Protection (Prohibited Employment) Act 1998 and in particular, under section 9 of that Act, that the Act should have no application to him in relation to a conviction which was recorded against him in 1981. 2 The Commission has had the benefit of reviewing the material filed and now tendered and admitted into evidence. The Commission has further had the benefit of the submissions of counsel for the applicant and counsel for the Commission for Children and Young People. There can be little doubt in my humble opinion that the applicant comfortably discharges the onus he bears. 3 As much is evident from the fact of his history since the conviction, of his reputation and standing in the community, and more particularly, the expert assessment of the psychiatrist, Dr Allnutt, to which I pay particular regard. 4 It is appropriate in mentioning that to observe that Dr Allnutt rates the applicant at the lowest possible level on the scale of risk assessment, if I can loosely describe it in that way. It is unsurprising and, with respect, most proper in the circumstances that the Commission for Children and Young People in its role assisting this Commission, does not oppose the application. 5 I do not see the need, nor the desirability, or appropriateness in the circumstances of this case to recite the detail of the circumstances giving rise to the conviction recorded against the applicant in 1981, and I do not propose to do so. In my opinion that matter should now be consigned to a bygone era. Further, I do not see it as appropriate or desirable in the circumstances to go into a detailed recitation of the evidence, given that it is unchallenged and uncontested. 6 Relying upon that evidence and having regard, as I must, to the relevant matters set out in section 9 subsection 5 of the statute and also to the authorities to which I have been taken (Commission for Children and Young People v "A" [2003] NSWIRComm 6; Commission for Children and Young People v "V" [2002] NSWSC 949; Commission for Children and Young People v "S" [2003] NSWIRComm 205, I make the declaration that the Act is not to apply to the applicant, and that the applicant is accordingly free of any prohibition that might otherwise apply. It follows that I am satisfied to the appropriate standard (see Briginshaw v Briginshaw (1938) 60 CLR 336) that the applicant the subject of the proposed order, does not pose a risk to the safety of children. 7 I direct the Registrar of the Industrial Relations Commission pursuant to subsection 10 of section 9 of the statute to notify the Commissioner of Police of the terms of this order the minute the order is taken out. 8 I further, and prior to concluding the proceedings, dissolve the stay granted on the prior occasion. AMENDMENTS HISTORY: 23/02/2007 - Spelling error of case name - Paragraph(s) 6 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.