INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
PRACTICE NOTE NO. 19
First Issue Date:
|
9 March 2007
|
Re-Issue Date:
|
1 February 2010
|
Re-issued pursuant to Section 185A of the Industrial
Relations Act 1996 and Section 15 of the Civil Procedure Act 2005.
Applications for declaration under section 33I of the
Commission for Children and Young People Act 1998
(1) The purpose of
this Practice Note 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
Note has effect from the date of re-issue and replaces Practice Direction No.
5.
(3) Applications for
an order under 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.
Boland J, President
1 February 2010
____________________
Printed by
the authority of the Industrial Registrar.