INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
PRACTICE DIRECTION No 19
Pursuant to Rule 89
of the Industrial Relations Commission Rules 1996
Applications for
declaration under section 33I of the
Commission for
Children and Young People Act 1998
(1) The purpose of
this Practice Direction is to provide an appropriate procedure for applications
for an order under section 33I of the Commission for Children and Young
People Act 1998 to be made to the Industrial Relations Commission of New
South Wales.
(2) This
Practice Direction will become effective 14 days after it is published on the
New South Wales Industrial Relations Commission website and replaces Practice
Direction No. 5.
(3) Applications
for an order under section section 33I of the Commission for Children and
Young People Act 1998 made to the
Industrial Relations Commission of New South Wales shall be made by way of
application, in terms of Form 1 of the Industrial Relations Commission of New
South Wales Rules 1996.
(4) The following is applicable to any such
application:
(a) The application
shall set out the relief sought and shall state briefly but specifically the
grounds on which that relief is sought.
(b) The primary
relief available under the section 33I of the Commission for Children and
Young People Act 1998 is an order
declaring that the Act is not to apply to the applicant in respect of a
specified offence.
(c) In specifying
the grounds upon which an order is sought, the applicant should note section
33J(1) and (3) of the Commission for Children and Young People Act 1998,
which provides that:
(i) The
Industrial Relations Commission is not to make an order under the Commission
for Children and Young People Act 1998 unless it considers that the person
the subject of the proposed order does not pose a risk to the safety of
children.
(ii) In deciding
whether or not to make an order in relation to a person, the Industrial Relations
Commission is to take into account the following:
(a) the seriousness of
the offences with respect to which the person is a prohibited person,
(b) the period of time
since those offences were committed,
(c) the age of the person
at the time those offences were committed,
(d) the age of each
victim of the offences at the time they were committed,
(e) the difference in age
between the prohibited person and each such victim,
(f) whether the person
knew, or could reasonable have known, that the victim was a child
(g) the prohibited
person's present age,
(h) the seriousness of
the prohibited person’s total criminal record,
(i) such other matters as
the Commission considers relevant.
(5) If the
applicant intends to make an application to the Commission for relief by way of
reinstatement or re-employment, or for any order for damages or compensation
for any removal from employment (however described), the application shall
state that the applicant intends to make that application. Wherever possible
the application for further relief shall be filed with the application for an
order under the Commission for Children and Young People Act 1998.
(6) Unless
otherwise approved by the Registrar, the application shall be accompanied by an
affidavit, which shall set out briefly but specifically:
(a) the
circumstances which have led to the application being made;
(b) those matters
on which the applicant relies for the relief sought in the application [see
paragraphs 4(a), (b) and (c) above]; and
(c) any material
relevant to the Commission’s exercise of discretion under section 33J(3) of the
Commission for Children and Young People Act 1998 upon which the
applicant intends to rely [see paragraph 4(c)(ii) above], and, to the extent
that the application refers to or contains matters of fact, shall verify those
facts.
(7) The
Application and supporting affidavit, together with any additional material
being filed by the applicant, shall:
(a) be accompanied
by three copies.
(b) be served by the
applicant on
(i) the
Commissioner for Children and Young People
(ii) such other
person, if any, that the applicant is directed to serve by the Industrial
Registrar, which may include the employer or former employer as relevant under
section 33E of the Commission for Children and Young People Act 1998.
M J Walton J, Acting President
9 March 2007