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

 

 

 

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Printed by the authority of the Industrial Registrar.