The Commission for Children & Young People v 'AG'

COUNSEL : Mr P Singleton - Applicant Ms P Lowson - First Respondent SOLICITORS : Crown Solicitors-Applicant Paul MacMahon Associates-First Respondent CATCHWORDS : Application for Declaration as to new application of Act-Powers of Statutory Tribunal-relationship of Crimes Act and Child Protection (Prohibited Employment ) Act 1998- Prerogative relief-relationship of Court with Industrial Relations Commission-comity Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment ) Act 1998 Child Protection (Offenders Registration) Act 2000. LEGISLATION CITED : Crimes Act 1900 Crimes (Amendment) Act 1961: Defamation Act 1974 Industrial Relations Act 1996 A v Commission for Children and Young People (2001) 107 IR 211 "AG" v Commission for Children and Young People 2001 NSW ADT 163 Butler v Attorney General for the State of Victoria (1961) 106 CLR 268 Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (147 CLR 297 Cobiac v Liddy (1969) 119 CLR 257 CASES CITED : Colin Grassby v The Queen (1989) 168 CLR 1 Mathieson v Burton (1971) 124 CLR 1 Meagher v Stephenson (1993) 30 NSWLR 736 Totalizator Agency Board v TAB Agents' Association of New South Wales (1995) 59 IR 36 R v Sales (1989) 42 A Crim R 297 Sarris & Guise v Penfolds Wine Pty Ltd [1962] NSWLR 801 DECISION : 1. An Order removing the record of the Administrative Decisions Tribunal in "AG v Commission for Children & Young People" [2001] NSW ADT 163, be brought up to this Court.; 2. That the Declaration made by the Administrative Decisions Tribunal be quashed.; 3. That an Order dismissing the Application be entered.; 4. That costs be reserved, and; 5. That the continuation of the interim orders be reserved for further argument.

• 18 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

The Commission for Children and Young People v 'AG'

JUDGMENT 1 HIS HONOUR: By Summons the plaintiff, the Commission for Children and Young People ("the Commission"), brought proceedings against a person designated as "AG" as first defendant and the second defendant, the Administrative Decisions Tribunal ("The Tribunal"), seeking an order pursuant to sub s9(11) of the Child Protection (Prohibited Employment ) Act 1998 ("the Act"), setting aside a declaration made by the Tribunal on 26 September 2001 and alternatively that the record of the Tribunal be removed to this Court and quashed and remitted to the Tribunal for determination according to law. 2 The Summons, alternatively sought to appeal against the decision of the Tribunal on the basis that the Tribunal had no power to make the Declaration in proceedings before it, and further that the Tribunal erred in following a decision of the Industrial Relations Commission because that case was wrongly decided. 3 The original application before the Tribunal, the decision of which was "AG" v Commission for Children and Young People 2001 (NSW ADT 163, 26 September 2001), was an application before Ms A Britton, Judicial member of the Tribunal, on an application as styled by the Tribunal for a Declaration that the applicant was not a "prohibited person" pursuant to s9 of the Act. 4 The definition of "conviction" in the Act is set out in s3 of the Act and provides; " conviction includes a finding that the charge for an offence is proven even though the court does not proceed to a conviction". 5 The definition of "Prohibited Person" and serious sex offence is set out in s5 of the Act: 5. Prohibited persons (1) For the purposes of this Act, a "prohibited person" means a person convicted of a serious sex offence, whether before or after the commencement of this subsection, or a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000 . (2) For the purposes of this Act, a person is not a prohibited person in respect of an offence if an order in force under section 9 declares that this Act is not to apply to the person in respect of the offence. (3) In this section: "serious sex offence" means (subject to subsections (4) and (5)): (a) an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or (b) an offence, involving sexual activity or acts of indecency, that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in New South Wales, or (b1) an offence under section 80D or 80E of the Crimes Act 1900 , where the person against whom the offence is committed is a child, or (c) an offence under sections 91D--91G of the Crimes Act 1900 (other than if committed by a child prostitute) or a similar offence under a law other than a law of New South Wales, or (d) an offence under section 578B or 578C (2A) of the Crimes Act 1900 or a similar offence under a law other than a law of New South Wales, or (e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs, or (f) any other offence, whether under the law of New South Wales or elsewhere, prescribed by the regulations 6 Section 9 of the Act gives the power to either the Industrial Relations Commission or the Administrative Decisions Tribunal, the power to make an Order declaring that Act "is not apply to apply to this person in respect of a specified offence" (emphasis added). Section 9 provides relevantly: " 9. IRC and ADT may make declarations concerning prohibited persons

(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence. (2) A "relevant tribunal" is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. (3) The Industrial Relations Commission may not make an order under this section unless: (a) the person is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from that employment under this Act, or (b) the person was such an employee who was dismissed from that employment under this Act. (4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. (5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following: (a) the seriousness of the offences with respect to which the person is a prohibited person, (a1) the period of time since those offences were committed, (b) the age of the person at the time those offences were committed, (c) the age of each victim of the offences at the time they were committed, (d) the difference in age between the prohibited person and each such victim, (d1) the prohibited person's present age, (e) the seriousness of the prohibited person's total criminal record, (f) such other matters as the tribunal considers relevant. (6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter. ( 7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order. …….. (9) Orders under this section may be made subject to conditions …….. (11) The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs. (b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings". 7 It should be noted that there is a restriction on the matters that may be placed before the Industrial Relations Commission. The current applicant would appear to have been eligible to so apply. 8 It is further provided by s12 of the Act that : " 12 . Relationship with other Acts and laws

(1) This Act prevails to the extent of any inconsistency between it and any other Act or law. (2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or employee contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment in accordance with this Act".

Facts 9 'AG' at the time of the Application was a seventy-year old man, employed by a specialist school for children with disabilities. In 1951 he was convicted of two Counts of Indecent Assault on a male person. The Act makes it an offence for a person to apply for or remain in child related employment if a "Prohibited Person", being a person who has committed a "Serious Sex Offence". 10 On 24 August 2001, the applicant lodged an Application with the Tribunal seeking a Declaration under s9(1) of the Act, that the Act not apply to him in respect of the offences referred to above and made an Application for a Stay pending determination of the Substantive Application. 11 Under s126(1) of the Administrative Decisions Tribunal Act 1997, ("The Tribunal Act"), an order was made, which would not identify the applicant's name or the circumstances of his employment and he was thus referred to as Mr AG. I have continued that in this judgment, giving effect to that order. 12 After some adjournments, the Tribunal made Orders, granting a conditional Stay of the prohibition on AG's employment and stayed the effect of the Act in respect of the two offences on strict terms and conditions, under which AG has continued his employment. 13 At the time of making orders on 10 September 2001, the tribunal had not referred to the decision of the Industrial Relations Commission of Hungerford J in A v Commission for Children and Young People (2001) 107 IR 211, delivered on 28 August 2001. 14 The Industrial Relation Decision was, a decision affecting an applicant in similar legal circumstances. In that decision, Hungerford J determined that that applicant was not a prohibited person under s5 of the Act because of the operation of s579 of the Crimes Act 1900. Section 579 being in the following terms: "579. Evidence of proceedings dealt with by way of recognizance after 15 years (1) Where, following the conviction of any person for an offence or a finding that a charge of an offence has been proved against any person, whether the conviction or finding was before or after the commencement of the Crimes (Amendment) Act 1961 : (a) sentence in respect of the conviction was suspended or deferred upon the person entering into a recognizance or, in substitution for sentence in respect of the conviction, the person was required to enter into a recognizance, or no conviction in respect of the finding was made and the person was discharged conditionally on his or her entering into a recognizance, and (b) a period of fifteen years has elapsed since the recognizance was entered into: (i) without the recognizance having been forfeited during that period or a court having found during that period that the person failed to observe any condition of the recognizance, and (ii) without the person having, during that period, been convicted of an indictable offence on indictment or otherwise or of any other offence punishable by imprisonment (otherwise than under section 82 of the Justices Act 1902 as amended by subsequent Acts) or without a finding during that period that a charge of such an indictable or other offence has been proved against the person, the conviction or finding shall, where that period expired before the commencement of the Crimes (Amendment) Act 1961 , as on and from that commencement, or, where that period expires or has expired after that commencement, as on and from the expiration of that period: (c) be disregarded for all purposes whatsoever, and (d) without prejudice to the generality of paragraph (c), be inadmissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect. Without prejudice to the generality of the foregoing provisions of this section, any question asked of or concerning that person in or in relation to any criminal, civil or other legal proceedings otherwise than by his or her counsel, attorney or agent or other person acting on his or her behalf may be answered as if the conviction or finding had never taken place or the recognizance had never been entered into. (2) Notwithstanding the provisions of subsection (1), where in any criminal, civil or other legal proceedings the person first referred to in that subsection, by himself or herself, his or her counsel, attorney or agent or other person acting on his or her behalf, otherwise than in answer to a question that can, in accordance with the last paragraph of that subsection, be answered in the negative, makes an assertion that denies the fact that the conviction or finding took place or that the recognizance was entered into, then the conviction, finding or recognizance is admissible: (a) in those proceedings, as to the character, credit or reputation of the person so referred to, (b) in any prosecution for perjury or false swearing founded on the assertion. The non-disclosure of the conviction, finding or recognizance in the making or giving of a statement or evidence as to the good character, credit or reputation of the person so referred to shall not of itself be taken, for the purposes of this subsection, to mean that the statement or evidence contains such an assertion. (3) In this section "legal proceedings" includes any application for a licence, registration, authority, permit or the like under any statute. (4) This section does not affect the operation of section 55 of the Defamation Act 1974 , or the operation of section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995 , for the purposes of section 55 of the Defamation Act 1974 . 15 It can be seen from the section, that, in the particular circumstances set out, the conviction is not admissible in any criminal, civil or other legal proceedings as being no longer of any legal force or effect (emphasis added). But in particular it is noted that the offence is to be "disregarded for all purposes whatever". 16 It is convenient here to set out paras 10,11,12 and 13 of the Tribunal's decision: " 10 . Hungerford J rejected the respondent's argument that s579 of the Crimes Act and the relevant provisions of the Child Protection Act were inconsistent and as such the earlier enacted Crimes Act must yield to the later enacted Child Protection Act . Nor did Hungerford J accept the respondent's submission that s12(1) of the Child Protection Act which must provide that the Statute "prevails to the extent of any inconsistency between it and any other Act or law" was a complete answer to the relationship between the two (apparently) competing statutes. 11 .Hungerford J took the view [at 43] that there is nothing in the statutory scheme of the Child Protection (Prohibited Employment) Act ,….to make it clearly and indisputably contradictory of s579. Indeed, I am satisfied that "the fairer and more convenient" construction, to adopt the approach of Mason J in Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (147 CLR 297 at p321), and one which is consistent with the competing provisions, would only be for them to operate as each subject to and in empathy with the other." He explained [at 44]: The very basis of the scheme in the Child Protection (Prohibited Employment) Act is the status of a person as a "prohibited person" which, in turn, is made to depend upon the person having been convicted of a serious sex offence; if there not be at any relevant time such a conviction, then, it must be the case, the person would not be a prohibited person. In other words, I see no difficulty in the operation of the statute, either as to its terms or in their implementation, in the conviction concerned being one which is only properly recognisable and effective as such. Where a conviction for an offence for some reason, such as s 579 here, is no longer truly effective in any respect then, in my view, it should not, indeed cannot, be sufficiently active or operative to be a relevant conviction for the purposes of s 5 of the Child Protection (Prohibited Employment) Act ; it has, by statute, to be disregarded and is no longer of any legal force or effect. That view of the interaction between the two provisions seems to me to be consistent with the ordinary meaning of the words used in each and as being consistent with the legislative intent thereby evinced as to both schemes. I see no ambiguity in the provisions as so understood.

12 .In dismissing the respondent's contention that in enacting the Child Protection Act the legislature intended to override s579, His Honour concluded [at 52]: "52. I am satisfied that a review of the provisions of the Child Protection (Prohibited Employment) Act discloses nothing to suggest that the legislature intended to derogate from or otherwise affect retrospectively a right already crystallised under s 579. I am firmly of that view even if, which I do not think to be the case, the legislature intended to remove the rights accruing but not yet crystallised under s 579. To so view the matter would not only infringe the general common law principle but also that principle as enshrined in s 30(1)(b), (c) and (4)(b) of the Interpretation Act as to the protection of statutory rights and even in a situation where those rights have merely commenced to accrue under the earlier legislation in the sense of being contingent. As Gibbs J, as he then was, observed in Mathieson v Burton (1971) 124 CLR 1 at p 23, in relation to the similar provisions in s 8(b) of the Interpretation Act of 1897 - "... does not apply where there is merely a hope or expectation that a right will be created ... but it does protect anything that may truly be described as a right, 'although the right might fairly be called inchoate or contingent'." In so saying, his Honour referred with approval to the general common law rules of construction as stated in Athlumney and in Maxwell ." 13. The issue before Hungerford J is on all fours with the issue raised by AG's application. Here the offences, for which Mr AG was convicted in 1950, absent any consideration of s579, constitute "serious sexual offences" as that term is defined by the Child Protection Act . It is not in issue that s579 applies to Mr AG and these convictions, all relevant conditions set out in that provision having being met. These 1950 offences are the sole matters which trigger Mr AG's status as a "prohibited person"." 17 The reasons of the Tribunal set out that the Tribunal did not consider itself bound by the doctrine of precedent in respect of decisions of the Industrial Relations Commission and that the decision in 'A' v The Commissioner for Children and Young People, had persuasive force only. The Learned Judicial Member then went on to say at para 15: " 15 As correctly pointed out for the respondent, a decision of the Industrial Relations Commission in Court Session is not binding upon the ADT. In the absence of authority of a superior court members of this Tribunal are entitled to reach their own conclusion as to the proper interpretation of the - Child Protection Act. The Tribunal is bound by the decision of the IRC. Consequently A v Commission for Young People and Anor has persuasive force only. However, in my view the principles of Tribunal comity demand that caution should be exercised before departing from the an approach adopted by another court or Tribunal where jurisdiction is shared. It goes without saying that principles of Tribunal comity do not require members of the ADT to apply decisions that are patently incorrect in law". 18 The Learned Judicial Member then went on to say at para 16: " 16 There is no obvious error of law. Having had the full benefit of considering Hungerford J's detailed judgment I intend in this decision to adopt that approach in respect to the relationship between the two statutory bodies". 19 It should be noted that the Judicial Member did not consider herself bound either by precedent or comity but adopted the reasoning of Hungerford J as her own. 20 It is my view, that despite what was submitted to this Court, the Judicial Member did not follow Hungerford J as a binding precedent and did not follow as an act of comity. The Judicial member expressed a view on comity, but then chose to adopt his approach in respect of the relationship statutory provisions. Thus, the Tribunal adopted the reasoning of Hungerford J as the Tribunal's reasoning. It is therefore the decision of the Tribunal that this Court is concerned with. 21 The Tribunal then went onto say that if 'AG' cannot be a "prohibited person" then the jurisdiction of the Tribunal to make an order under s9 of the Act cannot be invoked and went on to say at para 17: "Accordingly the application before me is otiose. This means, in short, that it is not an offence for Mr AG to remain in child-related employment. Nor is it an offence for his employer to continue to employ him". 22 The Tribunal then went on to make a declaration at 17: "Declare that Mr AG is not a "prohibited person" as defined in s5 of the Child Protection (Prohibited Employment) Ac t and is entitled to engage in child-related employment free from the operation of that Act with respect to him".

23 The Court had in evidence, the appeal that had been lodged in the decision of Hungerford J, which brings into account the construction of s12 of the Act and the relationship between the Act and s579 of the Crimes Act 1900. The Court was advised that the appeal was to be heard on 12 April last. The Court has not been advised as to whether the matter of the appeal has been heard or as to whether any decision has been handed down.

The Nature of the Proceedings 24 The amended Summons incorporated an appeal against the decision of the Tribunal in addition to the relief already sought, in the nature of Certiorari. 25 The original application by AG to the Tribunal was for a Declaration that the Act not apply to him in respect of the two offences.

Submissions of the Commission 26 The Commission contends that AG is a "prohibited person" within the meaning of the Act and therefore the Tribunal decision was wrong and contends in the nature of the relief of Certiorari that the Tribunal has no power to make a general Declaration, and in particular has no power to make the Declaration that it did. 27 The Commission further submitted that it was necessary to determine whether or not the first respondent is a "prohibited person" and that it is not sufficient to merely quash the Declaration made by the Tribunal. If the Tribunal has no declaratory power, then the Tribunal's Declaration should have substituted for it, an order dismissing the proceedings below. 28 Alternatively, it was submitted that should the Court be satisfied that the Tribunal has no declaratory power and find AG to be a "prohibited person", the Court should then quash or set aside the Tribunal's Declaration and remit the proceedings to the Tribunal. 29 It was submitted that whilst the Act does not express its objectives but it is primarily concerned with protection of children. I would add to that, that it is primarily concerned with the protection of children from people who have had convictions, not just the protection of children. 30 There is not issue between the parties that the offences were serious sex offences and that there was a conviction, which ever way s579 of the Crimes Act is determined would, in its absence, clearly constitute a conviction. It is submitted by Mr Singleton, for the Commission, that s9 of the Act entitles a prohibited person to seek an order exempting him from the provisions of the Act in respect of offences and that this is not intended to be a second punishment, but to ensure that paedophiles and the like do not work in child related employment unless it can be demonstrated tat they do not pose a risk.

Tribunal's Power to Grant Declaratory Relief 31 I accept the submission of the Commission that the Administrative Decisions Tribunal Act 1998, provides that the Tribunal has such functions as are conferred on it by that Act or law. 32 Statutory Tribunals and other inferior courts do not have the inherent powers of superior courts of record: Grassby v The Queen (1989) 168 CLR 1 and R v Mosely (1992) 28 NSWLR. 33 A statutory tribunal without the powers of superior courts of record will also have implied powers necessarily incidental to be able to work effectively within it's jurisdiction. 34 It is clear that the Act does confer on the Tribunal a power to declare "that this Act is not to apply to the person in respect of a specified offence".

There is clearly no other power to make a declaration nor is any statutory power, otherwise implied. 35 In making the finding above, I am not applying that reasoning to the Industrial Relations Commission if the s9 application were made to that Commission or any decision in relation to that. The Industrial Relations Commission is a superior court of record having status equal to that of this court and is a specialist jurisdiction operating under a fairly idiosyncratic regime and it is clearly not for this court at first instance to review a decision of that court in it's function when the Industrial Relations Commission sits in court session. There is another provision in s9(3) of the Act limiting the circumstances in which the Commission may make an order as set out above. That provision is set out above. 36 It is however, as submitted by the Commission, clear that in the course of determining an application under s9 whether the applicant is a competent applicant, the Tribunal must find whether that person is a "prohibited person" within the definition in the Act. Since the Act applies to a prohibited person, since s5 applies to a prohibited person unless an appropriate declaration is made under s9. The Tribunal therefore has two functions when sitting as the Tribunal, first, to decide whether the applicant is a prohibited person, secondly as to whether the applicant is entitled to a declaration, using the criteria set out under the Act. 37 It was submitted by the Commission that in the Declaration that the Tribunal made it was outside of the power of the Tribunal. It is further submitted that the doctrine of comity does not confer power to grant to relief. I do not consider that the Learned Judicial Member was considered herself armed by comity in terms of the Tribunal power, but in terms of the reasoning of Hungerford J in A v The Commission, as to the relationship of the Act to s579 of the Crime Act . 38 In my view, it was the duty of the Tribunal to first, in establishing whether the applicant was a competent applicant to determine whether he came within s5(i) of the Act and if having found that the applicant was not so competent, the proper course was to then dismiss AG's application. 39 This is, off course, a less than satisfactory result from AG's point of view as the dismissal of the application does not arm him with an order of the Court in order to protect his right to employment and would oblige him to use the dismissal judgment as his only protection. That would, off course, be the judgment of the Tribunal. 40 Although arguments have been advanced as to the power of Hungerford J to make a decision in court session, it is not appropriate for this court to examine the judgment in what would be in effect, an appeal from Hungerford J. That is a matter for the normal appeal processes from his decision. It may well be that the fault with the Act, if one may respectfully suggest is that there is no guidance to an applicant that can go either to the Tribunal or the Industrial Relations Commission, that applicant not being aware that the Industrial Relations Commission has different powers and certainly s9 of the Act guides an applicant, if it involves existing employment in an application under s9 of the Act to go to the Industrial Relations Commission. 41 Clearly, if an applicant does not come within the definition of a "prohibited person" in s5 of the Act, then the Tribunal cannot make a Declaration under s9 of the Act. In terms of the present matter it is submitted by Ms Lowson, on behalf of AG, that the Tribunal correctly found that the respondent is not a "prohibited person' and has referred the Court, in relation to s579, to the second reading speech introducing the Bill which incorporated s579 into the Crimes Act introduced into the Legislative Assembly on 29 November 1961, and the decision of Kirby P in R v Sales (1989) 42 A Crim R 297, where His Honour held, at p298: "That conviction occurred long ago in 1972. It should not have been taken into account- see Crimes Act 1900 section 579. The instruction of Parliament is clear. It is to be "disregarded for all purposes whatsoever". People should be entitled to live down such old convictions. The Trial Judge should not in my opinion have had any regard whatever to the spent conviction and sentence imposed in respect of it out of deference to Parliament's instruction in that regard. Upon this ground too, in my view, the Judge's sentencing discretion miscarried".

Inconsistency 42 It is submitted by the Commission that there is an inconsistency between the Act and s579 of the Crimes Act but I agree with the submission of Ms Lowson that there is no basis for including that the legislature did not intend s579 of the Crimes Act and the Act to operate together. The provisions of s579 are part of the Criminal Justice System and set up a very strict regime, which has a specific purpose, generally to rehabilitated. 43 The various alternative penalties, particularly those available since the enactment of s579 of the Crimes Act do not detract from the regime created by that section, which remains in the Crimes Act as part of an overall structure of the Act. 44 I also adopt the submission of Ms Lowson that in asserting inconsistency between the Act and s579 the Plaintiff fails to apply the principle that, in considering the operation of two State Acts there is a presumption that the legislature intended both to operate. See Sarris & Guise v Penfolds Wine Pty Ltd [1962] NSWLR 801 at 805; Butler v Attorney General for the State of Victoria (1961) 106 CLR 268 at 276; Totalizator Agency Board v TAB Agents' Association of New South Wales (1995) 59 IR 36 at 45. 45 I further accept the submission that in assessing how two Acts may interrelate a court must examine the language of the Acts; the resolution of any question of inconsistency is not based upon the application of a maxim. "…but whether a late Act has taken away a discretionary power given by an earlier Act must depend upon a comparison of the actual language of each, to see whether they do stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims" Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 268. 46 I reject the Commission's reliance on s12 as there is no inconsistency between s12 of the Act and s579 of the Crimes Act. 47 For the reason's articulated above and the reasoning of Hungerford J, which I apply both in terms of the comity between the Industrial Relations Commission and this Court and in any event I respectfully agree with the reasons of His Honour. I find that there is no inconsistency between the Act and s579 of the Crimes Act and that the applicant is not a "prohibited person", and thus not competent to bring the application.

The Course This Court Should Take 48 It is submitted by Ms Lowson, Counsel for AG that having regard to the whole of the decision there is no useful purpose in this Court entertaining the plaintiff's application as the Judicial Member has made findings pursuant to s9 of the Act, granting a conditional Stay and as the Commission is not challenged this aspect of the ADT, to the decision that the application for prerogative relief and the appeal if it is appropriate be dismissed. 49 It seem to me that if that the Declaration made made is Ultra Vires the Tribunal and thus, the appropriate remedy is the removal of the record from the Tribunal and that the Declarations made be quashed. 50 If the application is dismissed, I consider the conditions on AG's employment should also be removed, as there is no basis for the regime that is now in place, continuing. He is, in my view free to continue with his employment. This however, has not been argued and I reserve that for further argument. 51 The question of the adding of the appeal ground, does not have to be dealt with by this Court except in terms of costs. This is not a matter where a claim of Certiorari has been added to a statutory appeal, to secure an appeal as of right to the Court of Appeal as in Meagher v Stephenson (1993) 30 NSWLR 736 at 739. The prerogative remedy, first sought by the Commission is sufficient for the purposes of these proceedings and the question of the appeal does not arise. 52 For the reasons that I have set out above, if the record is to be brought up to this Court, to remit the proceedings back to the Tribunal, would serve little purpose. It is my view that in the exercise of the general power, this Court should make an order, which this case requires, which is to enter a dismissal of the application. 53 The orders of the Court are as follow: 1. An order removing the record of the Administrative Decisions Tribunal in AG v Commission for Children and Young People [2001] NSW ADT 163, be brought up to this Court. 2. That the Declaration made by the Administrative Decisions Tribunal be quashed. 3. That an Order dismissing the Application be entered. 4. That costs be reserved, and 5. That the continuation of the interim orders be reserved for further argument. oOo

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