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) 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) 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) 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 (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] 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" (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.