Public Services Association and Professional Officers' Association Amalgamated Union of NSW v Industrial Relations Secretary for the Department of Communities and Justice

[2025] NSWIC 11

Industrial Court

New South Wales

Medium Neutral Citation:

Public Services Association and Professional Officers’ Association Amalgamated Union of NSW v Industrial Relations Secretary for the Department of Communities and Justice [2025] NSWIC 11

Hearing dates:

5 August 2025

Date of orders:

22 August 2025

Decision date:

22 August 2025

Before:

Kite AJ

Decision:

1 The Court makes the following orders:

(1) The application is dismissed.

(2) Costs reserved.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – jurisdiction – procedure and powers – declarations – hypothetical issue – whether declaration will resolve all issues

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Weapons Prohibition Act 1998 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Inglis v Moore (1979) 24 ALR 411

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591

Chapman Davis v State of NSW (2015) 90 NSWLR 533

Ford v SAS Trustee Corporation [2000] NSWIRComm 92

A v Commissioner for Children and Young People [2001] NSWIRComm 194

Texts Cited:

Dyson Heydon J, Mark Leeming JA and Peter Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2014)

Category:

Principal judgment

Parties:

Public Services Association and Professional Officers’ Association Amalgamated Union of NSW (Applicant)
Industrial Relations Secretary for the Department of Communities and Justice (Respondent)

Representation:

Counsel:
Mr D Nagle (Applicant)
Mr M Foran and Ms H Nguyen (Respondent)

File Number(s):

2025/00070712

JUDGMENT

1. The applicant, on behalf of its member Adam Smith, applied for the following declarations:

1. That Adam Smith is permitted/able/entitled/eligible to perform duty as a Senior Correctional Officer within Corrective Services NSW.

2. That the Weapons Prohibition Order dated 8 March 2022 issued to Adam Smith does not prevent Adam Smith from entering Corrective Services NSW premises, including but not limited to Kirkconnell Correctional Centre, for the purpose of performing his role as a Senior Correctional Officer.

3. That Adam Smith was entitled to receive his usual remuneration on and from 3 April 2024.

2. The matter was listed for hearing over three days commencing 5 August 2025. By notice of motion filed on 24 July 2025 the respondent applied to have the application summarily dismissed and for orders, in the alternative, that the first two orders be summarily dismissed or struck out.

3. The motion was listed for directions on 29 July 2025. Counsel and the instructing solicitor who had been acting in the matter on behalf of the applicant were both engaged in trials in other courts. As a result, the motion could not be heard until the first day listed for the hearing. I directed the applicant to file and serve a short outline of submissions in answer to the motion and the respondent to file and serve a response prior to the hearing. The parties complied with those directions allowing clarification of the issues between them.

4. At the commencement of the hearing Mr Nagle of counsel, who appeared for the applicant, submitted that it was sensible for the respondent’s motion to be heard first. There was some short discussion about evidence, and I asked whether the applicant intended to make an application for leave to amend. The immediate answer was no, followed by a short statement of the issues as they seemed to the applicant. They were, whether the Court had jurisdiction and, if it did, whether the relief sought was hypothetical. I then referred to the seemingly common factual position that Mr Smith was not currently a correctional officer but held the position of a Case Management Officer (CMO), whereas the relief sought referred to his role as a Senior Correctional Officer. There was also the issue of a Firearms Prohibition Order (FPO) referred to in the respondent’s evidence and not dealt with at all in the applicant’s material. Mr Nagle applied for and was granted a brief adjournment to take some instructions.

5. Mr Foran of counsel, who appeared with Ms Nguyen for the respondent, agreed to the adjournment but made clear the respondent’s opposition to amendment.

6. When the hearing resumed Mr Nagle sought leave to amend the second prayer for relief by:

1. adding a reference to the FPO after the words “Weapons Prohibitions Order”;

2. deleting the word “his” and substituting “a” before “role”; and

3. deleting the word “Senior”.

7. He then made some submissions in support of the amendment.

8. Mr Foran opposed the application for leave to amend.

9. It is unnecessary to detail the submissions because Mr Nagle submitted in reply that he was happy to defer his application pending resolution of the respondent’s motion. He submitted, if the respondent succeeds on the basis of the application for declarations being hypothetical, the amendment would not vary the outcome. The hearing of the motion then commenced.

10. After hearing the parties on the motion, the Court adjourned to consider the arguments. On resumption I indicated I had formed a view on the motion, but in deference to the arguments advanced by the parties, considered I needed some further time to reflect and provide detailed reasons. Counsel conferred and agreed to vacate the balance of the hearing time to await the reasons and orders.

Evidence

11. In support of the motion the respondent read:

1. an affidavit, excluding paragraphs 13 and 15, of Mr Samuel Bridgeford, affirmed on 24 July 2025 together with the annexures to that affidavit;

2. an affidavit of Mr Paul Rzepecki, sworn 30 May 2025, but not including the annexures; and

3. an affidavit of Mr Michael Green, sworn 29 May 2025 including only Annexure “E”.

12. Mr Bridgeford is a Senior Advisor Employee Relations at the NSW Department of Communities and Justice (DCJ) and the instructing officer in the matter on behalf of the respondent. Based on the respondent’s business records, he deposed that Mr Smith:

1. had worked for DCJ since 2011, principally as a Correctional Officer (CO) or Senior Correctional Officer (SCO);

2. commenced duty as an SCO on 15 April 2019 at Lithgow Correction Centre (Lithgow CC);

3. on or about 28 September 2020, was assigned to Kirkconnell Correctional Centre (Kirkconnell CC);

4. following representations from the applicant on his behalf, was assigned to a temporary CMO position at Kirkconnell CC;

5. on or about 2 December 2024, was assigned temporarily to a CMO position at Lithgow CC;

6. on 5 March 2025, applied for an ongoing full-time CMO position at Lithgow CC; and

7. on 3 June 2025, accepted the offer of ongoing appointment to that position.

13. I will deal first with some of the evidence of Mr Green who is the Custodial Director Western Region for Corrective Services NSW (CSNSW). He has held that position since 21 August 2023. He has been employed in CSNSW for 36 years and has most recently held positions of Governor at Lithgow CC and John Maroney Correctional Centre, Manager of Security (MOS) at the Metropolitan Remand and Reception Centre, and Senior Superintendent in the Operation, Performance and Review Branch.

14. Mr Green says that in November 2020 he became aware that Mr Smith was in custody and facing criminal charges. Mr Smith was suspended without pay pending the outcome of the criminal charges. He was released from custody on 4 February 2021. On 7 February 2023 Mr Smith was convicted of various offences and was sentenced on 29 March 2023.

15. In November 2023 Mr Green became aware of a Weapons Prohibition Order (WPO) made against Mr Green by a delegate of the Commissioner of Police. On 6 November 2023 he met with Mr Smith at Kirkconnell CC. Also present was a representative of the applicant and a representative from the human resources section of CSNSW. At that meeting Mr Green told Mr Smith that he had formed the view that Mr Smith could not return to his duties as an SCO while the WPO was in force. Mr Smith disagreed with that position. After that meeting Mr Smith took a period of leave.

16. On 27 March 2024 Mr Smith wrote to Mr Green asking if he could return to his role as an SCO at Lithgow CC. The following day Mr Green emailed Mr Smith to request a copy of the WPO which was provided by return email. On 3 April 2024 Mr Green sent an email to Mr Smith advising that in his view the WPO prevented Mr Smith from performing his role as SCO. Mr Smith took a period of sick leave before commencing a temporary role as a CMO at Kirkconnell CC.

17. During preparation for this case Mr Green became aware of an FPO made on the same date as the WPO. So far as he is aware, the FPO remains in place.

18. Mr Rzepecki is the MOS at Kirkconnell CC. He is an employee of DCJ. He has worked in CSNSW since May 2003 and has held his current position since June 2024. He has also held MOS positions at Bathurst Correctional Centre and Mid-North Coast Correctional Centre. His most recent positions prior to those appointments were Principal Correctional Officer at John Maroney Correctional Centre and Senior Assistant Superintendent at the Prison Bed Capacity Program. He says that as MOS of Kirkconnell CC he has all the powers of a Governor of a Correctional Centre.

19. Mr Greene’s and Mr Rzepecki’s affidavits, in so far as they deal with certain matters of security, are the subject of a suppression order made under the Court Suppression and Non-publication Orders Act 2010 (NSW). It is inappropriate, therefore, to detail that information in this judgment.

20. It is sufficient to say that their affidavits provide information as to the circumstances in which correctional officers (including SCOs) may have need to use or possess items which fall within the definitions of prohibited weapons and firearms in the Weapons Prohibition Act 1998 (NSW) and Firearms Act 1996 (NSW) respectively. They also fall, therefore, within the scope of the WPO and FPO (the Orders) made by the delegate of the Commissioner of Police.

21. That information informed Mr Greene’s opinion that the WPO prevented Mr Smith from returning to duty as an SCO.

22. Mr Nagle read Mr Smith’s affidavit of 1 August 2025. There was no objection to that affidavit on the hearing of the motion. In it he refers to his periods of suspension and steps taken by the applicant to seek and achieve reinstatement of his pay and some leave entitlements. He also speaks of his temporary appointments as a CMO. He had a concern that he lacked security of employment, so he applied for the permanent position as a CMO.

23. He says that it is his intention to resign his employment as a CMO and return to work as an SCO if the applicant is successful in these proceedings. He says he would not have applied for the position of CMO were it not for the respondent’s decision not to permit him to work as an SCO.

24. The applicant also tendered the email by which Mr Green advised Mr Smith of his view as to the effect of the WPO on his employment. That document was Annexure D to Mr Smith’s affidavit of 17 February 2025 (which was not otherwise read). Mr Nagle also tendered the WPO which was Annexure C to that affidavit.

25. The terms of the Orders are concise. There are two operative paragraphs in which the delegate records his opinion which is that Mr Smith is “not fit, in the public interest, to have possession of a prohibited weapon” and the delegate therefore makes a WPO. The reasons for making the order are set out in Schedule 1 to the order. The reasons include the following statement:

“It is considered that you are not fit in the public interest to at any time have access to prohibited weapons. It is critical to ensuring the public’s safety that a weapons prohibition order is issued against you.” (Emphasis added.)

26. The FPO is Annexure E to Mr Greene’s affidavit. Apart from substituting the words “firearm, firearm parts or ammunition” for the words “prohibited weapons” it is in identical terms to the WPO both as to the form of the order and the reasons in support.

Submissions

27. The respondent submitted:

1. It is an appropriate time for determination of the motion: Inglis v Moore (1979) 24 ALR 411 at 422. This case is an abuse of process because it is plainly apparent that the first two prayers are without jurisdiction and the third is unsupported by any evidence and is also impermissibly vague.

2. The first two prayers for relief have significant problems of form in that they are vaguely expressed and “untethered to any material facts.” Declaratory orders need a degree of precision because their effect is to state the rights and obligations of the parties in the circumstances which exist.

3. The relief sought in the first two prayers is hypothetical. They relate to a possible future state of affairs which may never happen. Mr Smith does not have a position as a correctional officer. He is not currently even an applicant for such a position. Declarations make clear the current rights and obligations in law of the parties. As Mr Smith does not hold a position as a correctional officer, he has no such right to declare. The making of the declaration would not have the effect of restoring the status quo ante, as the applicant submits, and that is not the purpose of the declaration. The orders sought will not result Mr Smith being appointed to a position of correctional officer.

4. Declarations must have practical utility. It is generally inappropriate to grant declaratory relief if it will be inconclusive in resolving the controversy between the parties: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 per Mason CJ, Dawson, Toohey and Gordon JJ at 582 and Brennan J at 596; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 per Gaudron J at [52]; Chapman Davis v State of NSW (2015) 90 NSWLR 533 at [24], [2015] NSWIC 10.

5. By reference to an extract from the text Meagher, Gummow & Lehane’s Equity Doctrines & Remedies at [19.160], a means of testing whether there is a real, not hypothetical, question is to ask whether the declaration will produce real consequences for the parties. The future state of affairs in this case is uncertain. Mr Smith has no legal right to declare. He doesn’t have a right to be appointed to a CO or SCO position. The existence of the WPO is but one factor the employer might consider. The conduct which was the reason for the conviction may be regarded by the employer as unacceptable conduct by a candidate for appointment to a CO or SCO position. The declarations sought do not address that issue and therefore will not resolve all the issues between the parties. See Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075 at [28].

6. The relief as currently framed does not address the FPO.

7. The Court’s jurisdiction is statutory and governed by s 154 of the Industrial Relations Act 1996 (NSW) (IR Act). That section limits the power to make declarations to a right related to an identifiable matter otherwise within the jurisdiction of the Court or Commission; Ford v SAS Trustee Corporation [2000] NSWIRComm 92. The applicant has not yet identified a matter within the Commission’s jurisdiction as required by the section.

28. The applicant submitted:

1. The relief is framed as it is because the email from Mr Green, identified in [24], states that his decision to restrict Mr Smith’s access is predicated on, in summary, the power of the Commissioner of Police to make such an order, the terms of the order and the effect of the order as prescribed in s 34 of the Weapons Prohibition Act.

2. Section 6 of the Weapons Prohibition Act provides an immunity from prosecution for certain people including correctional officers. There is a question whether the immunity extends to permitting correctional officers to hold and utilise prohibited weapons for the purpose of performing the role as a correctional officer. Mr Nagle submitted there was a parallel with the decision of Hungerford J in A v Commissioner for Children and Young People [2001] NSWIRComm 194.

3. There has been:

“a determination by someone within the Department of Corrective Services, … that my client will not be permitted to perform his role, as it was then, and therefore affecting his rights as they were then, as a corrections officer, because of a weapons prohibition order”. ^[1]

4. The question, the applicant submitted, is whether that fetter on his then rights is valid or not. So understood, the question is tied to his employment, it is an industrial matter and therefore the court has jurisdiction to deal with the declaration as sought.

5. As to whether the declaration relates to hypothetical circumstances, the applicant submitted that Mr Smith was employed as a correctional officer. DCJ formed the view that he could not perform that role because of the WPO. His right to work as a correctional officer was affected by that decision. That is not hypothetical. He is shut out from performing such a role in the future, given the view held within DCJ, and his rights are therefore affected because he cannot even apply for such a position.

   1. Tcpt, 5 August 2025, p 17(44).

29. Mr Foran, in reply, submitted it would be an absurd construction given the findings of the Commissioner of Police to say that a person covered by a WPO should be entrusted with weapons in their employment.

30. He submitted that the decision in A v Commissioner for Children and Young People could be distinguished because the person the subject of the order was still employed as a teacher. Absent a determination by a relevant Tribunal such as the Industrial Relations Commission, they would be unable to remain in that employment.

Determination

31. The first issue as to jurisdiction is whether there is an identifiable matter otherwise within the Commission’s jurisdiction related to the subject matter of the declaration sought.

32. I accept Mr Nagle’s submission that the decision as expressed in the email at [24] relates to an industrial matter. The applicant, being a registered industrial organisation, could in my view notify a dispute about that industrial matter. The issues in that dispute would no doubt focus on the fairness of the decision to exclude Mr Smith from that particular employment.

33. One of the arguments which may be raised in such a dispute is the effect of the WPO. On the authority of Ford it is not necessary that such a dispute proceeding be extant. There is sufficient connection between the application before the Court and the envisaged industrial dispute to make premature a strike out order at this point of the proceeding.

34. The second issue is whether the declaration sought meets the tests required and summarised so succinctly in Ainsworth. The plurality in that case, said that the power to grant declaratory relief was discretionary:

“However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court's declaration will produce no foreseeable consequences for the parties.’” ^[2] (Citations omitted.)

2. Ainsworth at582

35. In this case, to my mind, the issue is hypothetical despite Mr Nagle’s attempts to make it “real”. Mr Smith, it may be accepted as an “interest”, at this point it is not a real legal interest. He does not hold the position of correctional officer nor is he currently an applicant for such a position. There is no evidence that he has sought to apply and been told he cannot. Mr Nagle’s submission suggesting to the contrary was more in the nature of a rhetorical flourish.

35. Nor does it assist the applicant’s case that he may have had a real interest in the past. I accept Mr Foran’s submission that the case in A v Commission for Children and Young People can be distinguished.

36. That case concerned “A”, a teacher who was then employed. On 3 July 2000 the Child Protection (Prohibited Employment) Act 1998 (NSW) (CP Act) commenced. The transitional provisions permitted a “prohibited person” to remain in employment, subject to certain steps being taken, for three months if that status was disclosed within one month of the commencement of the CP Act.

37. “A” made an application to the Industrial Relations Commission pursuant to section 9 of the CP Act for an order declaring that the Act did not apply in respect of a specified offence of which he had been convicted. Hungerford J made an order staying the operation of the statutory prohibition pending final determination. The offence of which “A” had been convicted occurred in 1970 when he was aged 17. The applicant’s case was that as a matter of law he was not a “prohibited person”. The applicant submitted that it was not a theoretical issue because, apart from his application under section 9 of the CP Act, it “more importantly” related to his ongoing employment. The Commission accepted that submission. The power to make a declaration under s 154 of the IR Act was enlivened by the related application under s 9 of the CP Act.

38. There was no issue raised about the matter being hypothetical in A v Commission for Children and Young People. The sole question before the Commission was whether “A” was a prohibited person within the meaning of the CP Act. The issues in this case are quite different.

39. I turn the to the argument that s 6 of the Weapons Prohibition Act provides an immunity for corrections officers. The section is in the following terms:

6   Application of Act

(1)   This Act binds the Crown in right of New South Wales and, so far as the legislative power of Parliament permits, the Crown in all its other capacities (except as otherwise provided by this section).

(2)   A person is not guilty of an offence under this Act or the regulations only because of something done by the person while acting in the ordinary course of the person’s duties—

(a)   as a police officer (or as a student police officer), or

(a1) as a special constable within the meaning of section 82L of the Police Act 1990 who is exercising functions of a police officer, or

(b)   as a correctional officer employed in the Department of Corrective Services, or

(c)   as a member of the police force, or as a custodial officer (however described), of the Commonwealth or of another State or Territory, or

(d)   as a member of the armed forces of the Commonwealth, or of any government that is allied or associated with the Commonwealth in any war or joint military exercise in which the Commonwealth is engaged.

(3)   A person is not guilty of an offence under Part 2 only because of possessing a prohibited weapon—

(a)   that is being conveyed or stored in the ordinary course of the person’s duties in the business of a carrier or warehouse operator, or

(b)   that has been seized by the person, under the authority of any Act or other law, in the course of the person’s duties as an employee or officer of a government agency or public authority, or

(c)   while acting in the ordinary course of the person’s duties as a member (other than a police officer) of the NSW Police Force.

(4)   The regulations may exempt any person or class of persons from the operation of any provision or requirement of this Act in such circumstances, and subject to such conditions, as may be specified in the regulations. Any such regulation may create offences in relation to a failure to comply with a condition prescribed in relation to an exemption.

41. Subsection (2) applies to police, custodial officers and members of the armed forces and provides that such persons are not guilty of an offence “only” because of something done in the ordinary course of their employment. Subsection (4) permits regulations exempting such persons from provisions of the Act in specified circumstances. Custodial officers are for example exempted from the requirement to hold a permit when performing specified duties.

42. I accept that custodial officers will not be guilty of an offence when using or possessing prohibited weapons in the course of their duties. The word “only” creates some doubt in my mind about whether a custodial officer who is the subject of a WPO is protected from prosecution under the section when performing the ordinary duties of such officers. That is because the existence of the WPO is an additional element for that person which distinguishes them from other custodial officers. I don’t need to finally resolve this issue, however, for the reasons which follow.

43. Subsection (1) makes clear that the Act binds the Crown. The persons exempted under subsection (2) are all engaged in the service of the Crown in one way or another. One might expect that the protections intended to be put in place by the Act are achieved by either the observance of permit requirements or supervision by the authorities in charge of exempt persons such as police and custodial officers. It follows that, even if the custodial officer would not be guilty of an offence, CSNSW would be expected to have regard to the provisions of the Act in determining whether, and in what capacity, to employ a person who was subject to a WPO.

44. That being so, s 6 of the Weapons Prohibition Act does not mean that CSNSW is entitled to ignore the existence of a WPO made against one of its custodial staff members. Indeed, in my view the contrary is the case. The applicant and Mr Smith may disagree with that view and that illustrates the scope of the issues between the parties. The declarations sought will not resolve all of these issues. Nor is any amendment likely to change that position. Mr Smith has no legal right to require CSNSW to ignore the WPO.

45. As noted at [25] the Police Commissioner’s delegate has expressed the view that, in the public interest, Mr Smith should not have access to prohibited weapons “at any time”. That is a matter that CSNSW could, and should, have regard to in deciding the capacity in which Mr Smith could and should be employed. CSNSW appears to have done that.

46. In my view, even if s 6 of the Weapons Prohibition Act permitted employment as a corrections officer as though the WPO did not exist, CSNSW would not be required to employ Mr Smith in that capacity. The employment in such a capacity is not merely a future event which may never happen, it is also one which would not be brought about by the declarations sought because they will not resolve all of the issues between the parties.

Decision and Orders

47. The third declaration seems to depend upon the making of the first two declarations. The submissions of the respondent about its vagueness and lack of connection to any material facts are also correct. For these reasons the application for declarations will be dismissed. The application for leave to amend has not been formally pressed pending my decision on the respondent’s motion. Accordingly, it will lapse.

48. The Court makes the following orders:

1. The application is dismissed.

2. Costs reserved.

**********

Endnotes