T v The Commission for Children and Young People. Application by T for declaratory relief under s 154 of the Industrial Relations Act 1996 [2008] NSWIRComm 21 (8 February 2008)

Last Updated: 30 May 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
T v The Commission for Children and Young People. Application by T for declaratory relief under s 154 of the Industrial Relations Act 1996 [2008] NSWIRComm 21



FILE NUMBER(S):
IRC 1995

HEARING DATE(S):
31 January 2008

DATE OF JUDGMENT:
8 February 2008

PARTIES:
APPLICANT:
"T"

RESPONDENT:
The Commission for Children and Young People





CORAM:
Haylen J


CATCHWORDS: Industrial Relations Act 1996 - s 154 - application for declaration that effect of Crimes Act amendment applicant no longer a "prohibited person" under the Commission for Children and Young People Act - common ground that applicant no longer a prohibited person and therefore not able to apply for a review of that status under s 33I Commission for Children and Young People Act - challenge to jurisdiction of Court to make a declaration to that effect - limited statutory jurisdiction of Court - held that application for declaration arose in relation to a matter in which the Commission had jurisdiction - consideration of the term "matter" - declaration made

Practice and procedure - application for declaration that applicant not a prohibited person within meaning of Commission for Children and Young People Act 1998 - relief exclusively within jurisdiction of Industrial Court - s 154 Industrial Relations Act 1996 - statutes - interpretation

Child Protection - "prohibited person" - application to Industrial Court for declaration - whether effect of Crimes Amendment (Sexual Offences) Act 2003 rendered applicant no longer a prohibited person - whether Court had jurisdiction to declare that applicant no longer a "prohibited person"

Words and Phrases - "matter" - s 154 Industrial Relations Act 1996



LEGAL REPRESENTATIVES
APPLICANT:
Mr D Patch of counsel
SOLICITORS:
Inner City Legal Centre

RESPONDENT:
Mr M Higgins of counsel
SOLICITORS:
Crown Solicitor


CASES CITED:
A v Commission for Children and Young People and anor (2001) 107 IR 211
Ainsworth and anor v The Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564 at 581
Atlantis Relocations (NSW) Pty Ltd v The Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125
Burgundy Royale Investments Pty Ltd and ors v Westpac Banking Corporation and ors (1987) 18 FCR 212
Commission for Children and Young People v V [2002] NSWSC 949; (2003) 56 NSWLR 476
Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 at 608
Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 443 at [76]
PMT Partners v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 330 per Toohey and Gaudron JJ
Re Wakim; Ex parte McNally and anor [1999] HCA 27; (1999) 198 CLR 511 at 583 - 88
Western Australia Area Health Service v Gibson (2001) 109 IR 359 at [22]

LEGISLATION CITED:
Crimes Act NSW 1900 s 78K,
Crimes Amendment (Sexual Offences) Act 2003
Industrial Relations Act 1996 s 154
The Commission for Children and Young People Act 1998 s 33O s 33I
s 33B s 33B(4)


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: HAYLEN J
8 February 2008

Matter No IRC 1995 of 2007
'T' v THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE
Application by "T" for declaratory relief under s 154 of the Industrial Relations Act 1996

JUDGMENT
[2008] NSWIRComm 21

1 Mr "T" has applied for a declaration pursuant to the provisions of s 154 of the Industrial Relations Act 1996. In the application filed, a declaration was sought that he was not on and from 13 June 2003 and has not since that date been a prohibited person for the purposes of s 33B of the Commission for Children and Young People Act 1998. When that application was listed before the Court it was quickly established that both the applicant and the Commission for Children and Young People (the respondent to the application) were of the view that recent legislative amendments had the effect of rendering Mr "T" no longer a prohibited person for the purposes of the Commission for Children and Young People Act ("CCYP Act"). In August 2007, the applicant had applied to the Commission under s 33I of the CCYP Act seeking a declaration that the CCYP Act should not apply to him in respect of offences of which he had been convicted in 1993. That application was essentially a review of his status as a prohibited person and required the Commission, inter alia, to determine if Mr "T" posed a risk to the safety of children. In any proceedings for a review it was to be presumed by the Commission that, unless the applicant proved to the contrary, the applicant posed a risk to the safety of children but if satisfied that the applicant did not pose such a risk, and having considered a number of factors required by the Act to be weighed, there was a discretion in the Commission to grant the order sought.

2 The application under s 33I of the CCYP Act came before Sams DP in October 2007 (Matter No IRC 1412 of 2007). On the calling of the application, it became clear that both parties were of the view that certain provision of the Crimes Amendment (Sexual Offences) Act 2003 which came into force on 13 June 2003 (the "Crimes Amendment Act") meant that the applicant was no longer to be regarded as a prohibited person under the terms of the CCYP Act. It was common ground that s 33I(1) operated such that only a "prohibited person" could make an application for review of that status under the CCYP Act. As Mr "T" was no longer a prohibited person, the Commission had no jurisdiction to entertain the application for review to make an order relevant to Mr "T"'s status as a prohibited person under that Act. As a result of that joint position, Mr "T" 's application before Sams DP was adjourned to allow Mr "T" to apply for a declaration as to his status as a person no longer classified as a "prohibited person" for the purposes of the CCYP Act. When the present application was made to the Court pursuant to the provisions of s 154 of the Industrial Relations Act, the Commission for Children and Young People again accepted that Mr "T" was not a "prohibited person" for the purposes of the CCYP Act and was therefore unable to make an application under s 33I of that Act but submitted that the Court had no jurisdiction under s 154 of the Industrial Relations Act to make the declaration sought as there was no relevant matter within the Court's jurisdiction: the existence of such a matter was a pre-requisite for the exercise of the s 154 power to make a declaration of right.

3 In the course of argument before the Court on this application, and as the position of the parties was refined, the applicant, without objection from the respondent, amended the claim and the following declarations were sought:

1. The Industrial Relations Commission of New South Wales has no jurisdiction to make the declaration sought by the applicant in Matter No IRC 1412 of 2007.

2. The applicant is not now, and on and from 13 June 2003 has not been, a prohibited person for the purposes of Part 7 of the Commission for Children and Young People Act, and is entitled to engage in child related employment free from the operation of the said Act with respect to him.

While not objecting to the amended application, the Commission for Children and Young People accepted that there was jurisdiction under s 154 of the Industrial Relations Act to make the first declaration sought by the applicant but submitted that there was no jurisdiction to make the second declaration and that such a declaration could only be validly made by the Supreme Court in exercising its common law jurisdiction.

4 In dealing with this argument it is necessary to briefly set out the facts and circumstances that led to Mr "T" becoming a "prohibited person" and how that status was altered by the Crimes Amendment Act. In April 1993, the applicant was convicted of two counts of an offence under s 78K of the Crimes Act NSW 1900. Those offences were constituted by homosexual intercourse with a male aged between the ages of 10 and 18: at the time of the first offence the victim was aged 16 and at the time of the second offence, he was aged 17. Although the homosexual acts were consensual, the aggravating factors were that the victim was in the care of Mr "T" who was then employed as a casual worker at a community living programme institute and further, the victim was autistic. Following those convictions, with the enactment of the first provisions dealing with the protection of children from sexual abuse, Mr "T" became a prohibited person and his employment opportunities, insofar as they placed him in contact with children or young persons, were significantly reduced. In his application for review under s 33I of the CCYP Act, Mr "T" referred to instances of being dismissed from employment and failing to obtain or continue in employment because of these convictions.

5 On 13 June 2003, the Crimes Amendment Act came into force. One of the provisions of the Crimes Amendment Act omitted s 78K of the Crimes Act and thereby abolished the separate offence of homosexual intercourse with a male between the ages of 10 and 18. The effect of the Crimes Amendment Act was to introduce a common age of consent for sexual intercourse without any particular reference to homosexual intercourse such that the Crimes Amendment Act operated to lower the age of consent for homosexual intercourse from 18 to 16 years of age.

6 At the time of the passing of the Crimes Amendment Act, the CCYP Act contained a provision, now found in s 33B(4), namely:

An offence that was a serious sex offence at the time of its commission is not a serious sex offence for the purposes of this Division if the conduct constituting the offence has ceased to be an offence in New South Wales.

At all relevant times, a serious sex offence was defined to mean, inter alia, an offence involving sexual activity or acts of indecency that were committed in New South Wales and that were punishable by penal servitude or imprisonment for 12 months or more. Mr "T" had been convicted under the provisions of s 78K of the Crimes Act and at the time of the first child protection legislation those offences satisfied the definition of a "serious sex offence". Mr "T" was in fact sentenced to imprisonment for a period of two years, 8 months with a non-parole period that otherwise is not relevant for present purposes.

7 It was common ground that the purpose and intent of the provision now found in s 33B(4) of the CCYP Act was to no longer treat, as prohibited persons those who were convicted of an offence from the time that offence ceased to be an offence in New South Wales. In Mr "T" 's case that provision operated so that from 13 June 2003, on the coming into operation of the Crimes Amendment Act, s 78K of the Crimes Act no longer existed and the conduct in relation to which Mr "T" had been convicted was no longer a crime in New South Wales.

8 Having considered the submissions made by the parties, I concur with the conclusions reached concerning the construction and operation of s 33B(4) of the CCYP Act and that in relation to the Crimes Amendment Act the result is that, from the commencement Crimes Amendment Act on 3 June 2003, Mr "T" was no longer a prohibited person for the purposes of the CCYP Act. It therefore follows that the Commission has no jurisdiction to entertain the application now adjourned before Sams DP seeking a review under s 33I of the CCYP Act. The Commission has previously held that a review application under the equivalent provision of earlier legislation could only be made by a "prohibited person" (see "A" v Commission for Children and Young People and anor (2001) 107 IR 211). At the time Mr "T" made his application to the Commission, in August 2007, he was no longer a "prohibited person" and the Commission had no jurisdiction to deal with that application for review under s 33I of the CCYP Act.

9 The major issue arising in the present proceedings concerns the jurisdiction of the Court to make a declaration that Mr "T was not a prohibited person and had not been a prohibited person since the passing of the Crimes Amendment Act in circumstances where it was conceded that he was no longer a "prohibited person" and where the Commission had no jurisdiction to conduct a review of his status as a "prohibited person" pursuant to the provisions of s 33I of the CCYP Act.

The terms of s 154 of the Industrial Relations Act are as follows:

(1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.

(2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought.

The reference to the "Commission in Court Session" is now to be read as a reference to the Industrial Court of New South Wales.

10 Counsel for the applicant submitted that the Commission had jurisdiction under s 33I of the CCYP Act to make an order that the Act does not apply to the applicant in respect to the specified offences. In order to determine the question of whether or not the order should be made, the Commission had to firstly determine the issue of whether the applicant was a prohibited person: the power to determine that jurisdictional fact was fundamental to the exercise of the jurisdiction and was plainly within the jurisdiction of the Commission. A declaration that a person was not a "prohibited person" relevantly related to a matter within the Commission's jurisdiction, namely, the matter of the making of an order under the CCYP Act in relation to the applicant alleged to be a prohibited person (see "A" v Commission for Children and Young People at [9]). Further, the words "in or in relation to" in s 154 were particularly wide and there was no call to read them down or to give them any constricted operation: the words were prima facie broad and designed to catch things which may have sufficient nexus to the subject (PMT Partners v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 330 per Toohey and Gaudron JJ).

11 Counsel for the respondent referred to the legislative history of the present provisions that had remained relatively unchanged since the first legislative scheme was introduced in 1998. It was noted that in the Second Reading Speech, the Minister stated that the Prohibited Employment Bill provided a right of review for prohibited persons enabling such a person to seek a court order that the provisions of the proposed Act did not apply. Such an order was not to be made unless the Tribunal was satisfied that the person concerned did not pose a risk to the safety of children. It was important to understand, therefore, that only prohibited persons could make an application and the role of the Commission was to review the applicant's risk. That was the extent of the Commission's power and there was no jurisdiction to entertain some wider application for a declaration. While it was recognised that the Court was constituted as a superior court of record and a Court of equivalent status to the Supreme Court (Industrial Relations Act, s 152), the Court was nevertheless a statutory Court and had no inherent jurisdiction. It followed that the only power that the Commission could exercise in relation to a "prohibited person" was to conduct a review under the provisions of s 33I of the CCYP Act, although it was conceded that the Commission or the Court could make a declaration that the Commission had no power to entertain a particular application in circumstances where the applicant was not or was no longer a "prohibited person". The respondent would, therefore, not object to the first declaration being sought by the applicant in the present proceedings regarding the absence of jurisdiction to entertain his application but would oppose the second declaration concerning the applicant's status as a "prohibited person".

12 In A v Commission for Children and Young People, Hungerford J faced a similar situation to that currently before the Court. That case dealt with the provisions of s 579 of the Crimes Act and the provision that, after a nominated period, certain earlier convictions were to be disregarded for all purposes whatsoever. The convictions in those proceedings met that statutory definition and his Honour was faced with a contest as to how s 579 interacted with the equivalent provision of the CCYP Act. "A" had made an application under the previous legislation for an order declaring the Act did not apply to him in respect of a specified offence. During the course of the hearing of that application, the issue arose as to whether or not "A" was indeed a prohibited person. Ultimately, an application was filed seeking a declaration under s 154 of the Industrial Relations Act 1996 that the applicant was not such a prohibited person. Hungerford J noted that if that application was successful, the applicant would have no need to pursue the original application because, not being a prohibited person, the equivalent provisions of the CCYP Act would not apply to him notwithstanding the earlier offence. Because of the nature of s 154, Hungerford J reconstituted the Commission as the Commission in Court Session to deal with the application.

13 Initially, the Commission for Children and Young People took the position that the Court did not have jurisdiction to make the declaration sought by "A" but at the hearing conceded that jurisdiction did exist. In dealing with this position, his Honour stated (at 213) as follows:

[8] ... .I think the concession was properly made: see Altantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126-127; Re Glass Workers' Redundancy (State) Award [1998] NSWIRComm 297; and Kellogg (Aust) Pty Ltd v National Union of Workers (NSW Branch) (1998) 89 IR 391. In Ford v SAS Trustee Corporation (2000) 98 IR 444, I had occasion to make a declaration as to a person's rights under the Police Regulation (Superannuation) Act 1906 in relation to his entitlement to certain leave and, as to the existence of jurisdiction, observed (at 476):

The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it.

In the present case, the Commission has power to make an order under s 9 of the Child Protection (Prohibited Employment) Act declaring that that Act is not to apply to a particular person who is a prohibited person; central to that determination is the status as such of the person concerned. The declaration sought here from the Court, in my view, relevantly relates to a matter within the Commission's jurisdiction, namely, the matter of the making of an order under s 9 in relation to the applicant as a person alleged to be a prohibited person. It follows, I am satisfied, that the Court has power to make the declaration sought under s 154 of the Industrial Relations Act as to whether the applicant is a prohibited person.

It was noted by counsel for the applicant that his Honour's judgment in this case as to the availability and appropriateness of declaratory relief had been referred to, with approval, by a Full Bench of the Commission in Western Australia Area Health Service v Gibson (2001) 109 IR 359 at [22] although the precise issue arising here was not the subject of discussion by the Full Bench.

14 In his decision in "A", Hungerford J also referred to his decision in Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 443 at [76] where his Honour adopted what had been said by a majority of the Full Bench in Atlantis Relocations (NSW) Pty Ltd v The Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125, namely, that the declaratory jurisdiction arises in relation to a matter in which the Commission has jurisdiction whether or not any consequential relief is or could be claimed: the declaratory power was therefore not contingent upon the existence of proceedings which were otherwise within jurisdiction, as the power arose in relation to a "matter" as opposed to "proceedings".

15 In the course of argument, counsel for the respondent was unable to effectively distinguish the present proceedings from those dealt with by Hungerford J in "A"'s case. In ""A's case, it was the effect of the provisions of the Crimes Act on the operation of the equivalent provision of the CCYP Act that led the Court to conclude that there was a relevant "matter" within the jurisdiction of the Commission. In the present case, the applicant complains that his status as a prohibited person has led to him being removed from employment and has adversely affected his capacity to obtain ongoing, continuous employment. In his case, it is the 2003 amendment in relation to sexual offences that has resulted in an alteration to his status as a prohibited person and that alteration to status has deprived the Commission of jurisdiction to hear an application under s 33I. The entire question of jurisdiction revolves around "T"'s altered status as a result of the 2003 Crimes Amendment Act. This position is indistinguishable from that considered in "A"'s case by Hungerford J. I concur in his Honour's approach as to the availability of s 154 in such circumstances.

16 A declaration that the Commission lacks jurisdiction to deal with Mr "T"'s application for a review of his status under s 33I of the CCYP Act, however, does not deal with the full nature of the controversy because it is only as a result of his changed circumstances and status flowing from the 2003 amendment that there is no jurisdiction for a review by the Commission. It seems, therefore, that the respondent could have no objection to a declaration that as a result of the 2003 amendment, Mr "T" was no longer a prohibited person and thereby the Commission lacked jurisdiction to entertain his application under s 33I of the CCYP Act. It seems therefore merely a matter of form as to whether those declarations could be made separately or that the declarations be made as sought by the applicant with the second declaration arising from an exercise of the incidental powers of the Court. In the circumstances of this controversy, a single declaration will be made dealing with both the status of Mr "T" and the lack of the Commission's jurisdiction but that approach should not be taken as an acceptance of a lack of jurisdiction in the Court to make a separate declaration that Mr "T" is not now and has not been since 2003, a prohibited person for the purposes of the CCYP Act in respect of the 1993 offences under s 75K of the Crimes Act.

17 There are other considerations. As already indicated, the provisions of s 154 of the Industrial Relations Act permits the Court to make binding declarations of right "in relation to a matter in which the Commission (however constituted) has jurisdiction". It is accepted that the words "in relation to" are broad and frequently used in legislation to permit courts to consider issues that are connected with an application. Similarly, the word "matter" has been broadly construed. For example, in relation to the accrued jurisdiction of the Federal Court the "matter" is the justiciable controversy between the parties and comprises the substratum of facts and claims constituting the controversy between them. A justiciable controversy is not limited to the form of the proceedings (Re Wakim; Ex parte McNally and anor [1999] HCA 27; (1999) 198 CLR 511 at 583 - 88) but rather is comprised of the whole of the controversy between the parties that is before the Court. There will be a single matter if different claims arise out of common transactions and facts or a common substratum of fact, notwithstanding that the facts upon which the claims depend do not wholly coincide (see Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 at 608): there is only one matter where different claims are so related that the determination of one is essential to the determination of the other (Fencott at 607). In Burgundy Royale Investments Pty Ltd and ors v Westpac Banking Corporation and ors (1987) 18 FCR 212, the Full Court of the Federal Court was faced with a position where the applicant's principle claim for relief was for damages pursuant to s 82 of the Trades Practices Act 1974 and otherwise and also sought a declaration that several agreements made between certain of the applicants and certain of the respondents were void. Some of the claims made in the Federal Court's accrued jurisdiction were alternatives to statutory claims under s 86 of the Act and therefore derived from the same subject matter but it was submitted that once the statutory claims had been held to be without foundation, there remained those substratum of facts common to them and the common law claims such that the common law claims were entirely severable. It was submitted that the court had no jurisdiction in the common law claims. The Full Court rejected that analysis and held that the jurisdiction of the court was to entertain and determine all claims constituting a "matter" whatever their ultimate fate.

18 These cases are referred to by way of seeking assistance in approaching the different provision found in s 154 of the Industrial Relations Act 1996 and the different statutory and constitutional context in which the argument arises. Nevertheless, those cases indicate the width of the concept of "matter" and provide an appropriate test to be applied in relation to s 154. In the present case, the current controversy between the parties is Mr "T"'s status as a "prohibited person" for the purposes of the CCYP Act in relation to his 1993 offences. The resolution of that question is an essential requirement before the Commission is able to exercise the powers of review under s 33I of the CCYP Act. The controversy between the parties is not simply whether Mr "T" is a risk to children or whether he may be granted relief from his status on a review conducted by the Commission but necessarily includes the issue of whether or not he is a prohibited person and entitled to bring such an application. In this sense there are not just common issues but the identical issue arises under any proposed exercise of the Commission's power of review under s 33I and in the Court's jurisdiction under s 154 of the Industrial Relations Act 1996.

19 While the respondent submitted that a superior court of limited jurisdiction, such as this Court, possessed no inherent powers it was accepted that there were a limited number of such powers available to courts established by statute, for example, the power to prevent an abuse of the court's processes. It is not fruitful to further examine this issue in light of the clear jurisdiction of the Court in this matter but it is to be noted that in Ainsworth and anor v The Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564 at 581, four members of the High Court stated that it was now accepted that superior courts have inherent power to grant declaratory relief and that it was a discretionary power which was neither possible nor desirable to fetter by laying down rules as to the manner of its exercise. That power was confined by considerations that marked out the boundaries of judicial power and so declaratory relief had to be directed to the determination of legal controversies rather than answering abstract or hypothetical questions. The persons seeking relief had to have a real interest and the relief would not be granted if the question was purely hypothetical. That statement of the High Court is general in its terms and does not analyse any different position that may apply to a superior court of limited jurisdiction but it may be expected that, just as courts of law are able to decide whether any statutory or regulatory provision applies in the course of dealing with a matter properly before it, the inherent declaratory power of a superior court of limited jurisdiction would be limited in the manner described in s 154 of the Industrial Relations Act.

20 In a separate judgment in Ainsworth, Brennan J held that a declaration was available in the circumstances of that case and at 596-597 stated:

In Chief Constable of North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155, where a Chief Constable had given a police officer the option of resigning or having his services terminated and the Chief Constable had failed to give the officer the opportunity to deal with the allegations made against him, the House of Lords made a declaration to protect the interests of the officer who had resigned so far as those interests were susceptible of protection by declaration. Lord Brightman observed at 1172 that -

It would, to my mind, be regrettable if a litigant who establishes that he has been legally wrong, and particularly in so important a matter as the pursuit of his chosen profession, has to be sent away from a court of justice empty-handed save for an order for the recoupment of the expenses to which he has been put in establishing a barren victory.

I respectfully agree.

21 One further matter deserves consideration. It seems apparent that the conduct of a review of the status of a prohibited person under the CCYP Act was assigned to the Commission not because it had any particular expertise over other courts or tribunals in assessing the risks offenders pose to children but because of its general industrial expertise and the variety of ways in which employers, employees and employment is to be protected having regard to general concepts of fairness. In the matter of Commission for Children and Young People v "V" [2002] NSWSC 949; (2003) 56 NSWLR 476, the Chief Judge in Equity (Young J) approved the approach of the Commission in matter of "R" to the extent that the task of the Commission was properly described as being a balancing between three important considerations, namely, the protection of employers, the requirement to protect young people from sexual offenders, and, the offender's reasonable civil liberties and the right to work. His Honour at [39] also asked, rhetorically, why the Commission would be given the jurisdiction to hear these applications, unless it involved some assessment of the right to work over the risk to children? Indeed, s 330 of the CCYP Act prohibits the Commission from making an order unless the person is an employee within the meaning of the Industrial Relations Act who is liable to be dismissed from that employment under the CCYP Act or was dismissed from that employment under the CCYP Act. The CCYP Act imposes a wide range of prohibitions and barriers to certain classes of employment that may be undertaken by a prohibited person having regard to the nature of the offences committed by that person. It is in this context that it may be said that, in an application for review under s 33I of the CCYP Act and in an application for a declaration in the terms sought in the present case, the "matter" in both proceedings can be broadly described as relief sought in relation to the extent of child related employment that may be made available to an applicant and any appropriate restrictions upon the employment of a person who has had convictions that come within the operation of the CCYP Act. Described in this broad way it can be readily accepted that the applications for a declaration in this case arise in relation to a matter in which the Commission, however constituted, has jurisdiction. For reasons already outlined, a declaration in slightly different terms to that sought by the applicant will be made by the Court. Although this is not a matter arising under a review conducted in accordance with the provisions of the CCYP Act, it is appropriate that the Commissioner of Police be advised of the Court's declaratory order.

DECLARATION

The applicant Mr "T" is not now, and on and from 13 June 2003 has not been, a prohibited person for the purposes of Part 7 of the Commission for Children and Young People Act, 1998. The Industrial Relations Commission of New South Wales therefore has no jurisdiction to make the declaration sought by Mr "T" on the application for review under the provisions of s 33I of the Commission for Children and Young People Act 1988 sought in Matter No 1412 of 2007.

LAST UPDATED:
30 May 2008